author: DAVID R. FARMER, J.,

text:
    Jackie JACKSON, Administrator of the Estate of Karon Jackson v. Johnny JOYNER, M.D., et al.
    Court of Appeals of Tennessee, at Jackson.
    Jan. 22, 2009 Session.
    April 7, 2009.
    Application for Permission to Appeal Denied by Supreme Court Dec. 4, 2009.

      Todd A. Rose, Paris, Tennessee, Les Jones, Memphis, Tennessee, and Noel H. Riley, II, Dyersburg, Tennessee, for the Appellant, Jackie Jackson.
    Marty R. Phillips and Craig P. Sanders, Jackson, Tennessee, for the Appellees, Johnny Joyner, M.D., and Jackson Clinic Professional Association.
   OPINION

DAVID R. FARMER, J.,

delivered the opinion of the court,

in which HOLLY M. KIRBY, J. and J. STEVEN STAFFORD, J., joined.

The trial court granted Defendants’ motion to exclude portions of Plaintiffs expert’s deposition testimony and awarded Defendants summary judgment. We vacate the award of summary judgment, reverse the trial court’s order excluding testimony of the expert witness, and remand for further proceedings.

This appeal arises from a medical malpractice action; the facts relevant to our disposition of this matter are undisputed. On September 24, 2003, Karon Jackson (Ms. Jackson) underwent a total hysterectomy. She was forty years of age. The surgery was performed by Defendant Johnny Joyner, M.D. (Dr. Joyner), who was then employed by the Jackson Clinic Professional Association (“the Jackson Clinic”; collectively, “Defendants”). Ms. Jackson was discharged on September 27, 2003. She suffered complications and was referred by Dr. Joyner to Robert Summitt, M.D. (Dr. Summitt), a urogynecologist, for further evaluation. Dr. Summitt evaluated Ms. Jackson on October 10, 2003, and diagnosed her as having a two millimeter vesi-covaginal fistula and a urinary tract infection. Dr. Summitt scheduled Ms. Jackson for a follow-up appointment in six weeks.

On October 11, 2003, Ms. Jackson arrived at the emergency room by ambulance. She was unresponsive upon arrival. Dr. Joyner evaluated Ms. Jackson and he and general surgeon Jeffrey Swetnam, M.D. (Dr. Swetnam), performed a surgical evaluation. Dr. Joyner and Dr. Swetnam discovered Ms. Jackson had a necrotizing fasciitis in her left abdominal wall. Necro-tizing fasciitis is a rare bacterial condition that causes tissue to die and infection to spread quickly across deep layers of the skin. Patients diagnosed with the condition apparently have a high rate of mortality. The infection/sepsis resulted from a previously undiagnosed subfascial hemato-ma/hemorrhage following the hysterectomy on September 24.

Dr. Joyner debrided the infected area to remove the necrotic tissue. During consultation with Ms. Jackson’s family following surgery, Dr. Joyner was informed that Ms. Jackson had been taking an undetermined amount of hydrocodone along with the pain medication that had been prescribed by Dr. Joyner. She underwent a second surgery to remove additional tissue, and was treated with antibiotics. Ms. Jackson was transferred to Baptist Hospital in Memphis, where she underwent addition surgery and died on October 13, 2003.

On August 30, 2004, Plaintiff Jackie Jackson (Mr. Jackson), acting as administrator of Ms. Jackson’s estate and next friend of Ms. Jackson’s surviving children, filed a complaint for wrongful death and medical malpractice against Dr. Joyner and the Jackson Clinic in the Circuit Court of Dyer County. In his complaint, Mr. Jackson alleged that Dr. Joyner’s failure to diagnose the subfascial hematoma and his failure to “evaluate, treat or monitor the hematoma” until October 11, 2003, was a clear deviation of the standard of care. He alleged that Dr. Joyner’s failure to timely diagnose and treat the hematoma caused the necrotizing fasciitis and sepsis and proximately caused Ms. Jackson’s death. Mr. Jackson further asserted the Jackson Clinic was liable under the doctrine of respondeat superior. Mr. Jackson sought damages in the amount of $2,000,000 and demanded a trial by jury. In December 2006, Mr. Jackson amended his complaint to pray for damages in an amount to be determined by the jury and to include costs and prejudgment interest.

Defendants answered and denied Mr. Jackson’s allegations of negligence. They also asserted the doctrine of comparative fault, asserting, inter alia, that Ms. Jackson gave inaccurate, false, and incomplete information regarding her medical history, that she failed to follow her health care provider’s instructions, and that she abused prescription drugs.

Following discovery, including video depositions of Mr. Jackson's expert witness, Daniel Strickland, M.D. (Dr. Strickland), and Defendants’ expert witnesses, Michael Gelfand, M.D. (Dr. Gelfand) and Dr. Summit, the matter was set for trial beginning January 23, 2008. Rather than calling the expert witnesses to testify at trial, their video depositions were to be played in place of live testimony. On November 29, 2007, Defendants filed a motion to exclude portions of Dr. Strickland’s “causation testimony.” In their motion, Defendants moved to exclude 1) Dr. Strickland’s testimony that Dr. Joyner’s documentation of Ms. Jackson’s blood values on October 8, 2003, was not “medically credible” because Ms. Jackson’s chart did not include a corresponding lab report; 2) a chart prepared by Dr. Strickland based upon Ms. Jackson’s medical records in order to assist the jury in understanding Ms. Jackson’s blood values in September and October 2003; 3) Dr. Strickland’s testimony regarding Ms. Jackson’s medical expenses; 4) Dr. Strickland’s testimony that Ms. Jackson would have survived and been able to return to work had she undergone a second operation to evacuate the hematoma in a timely fashion. Defendants asserted Dr. Strickland’s testimony was speculative and that its probative value was outweighed by the danger of unfair prejudice. Defendants further asserted that Dr. Strickland based his causation opinion upon nothing but experience despite admitting that he had never treated necrotizing fasciitis, that he is not an infectious disease specialist and would not treat the actual condition at issue; that he knew of no scientific article or study which would support his causation opinion; and that Dr. Strickland’s testimony was entirely speculative.

On December 14, 2007, Defendants moved for summary judgment on the basis that Mr. Jackson had failed to provide any evidence to prove causation as required by Tennessee Code Annotated § 29-26-115. Following a hearing on December 20, 2007, by order entered March 6, 2008, the trial court granted Defendants’ motion and excluded Dr. Strickland’s causation testimony as lacking trustworthiness and reliability. The trial court granted Defendants’ motion for summary judgment the same day. Mr. Jackson filed a timely notice of appeal to this Court on April 1, 2008.

Issue Presented

The sole issue presented for our review, as we slightly rephrase it, is whether the trial court erred by awarding summary judgment to Defendants upon excluding the causation testimony of Mr. Jackson’s expert witness.

Standard of Review

Our review of a trial court’s award of summary judgment is well-settled and recently has been clarified more definitively by the supreme court. We review a trial court’s award of summary judgment de novo with no presumption of correctness, reviewing the evidence in the light most favorable to the nonmoving party and drawing all reasonable inferences in that party’s favor. Martin v. Norfolk S. Ry. Co., 271 S.W.3d 76, 84 (Tenn.2008) (citations omitted).

Summary judgment is appropriate only where the “pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits ... show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Id. at 88 (quoting Tenn. R. Civ. P. 56.04; accord Penley v. Honda Motor Co., 31 S.W.3d 181, 183 (Tenn.2000)). The burden of persuasion is on the moving party to demonstrate, by a properly supported motion, that there are no genuine issues of material fact and that it is entitled to judgment as a matter of law. Id. (citing see Staples v. CBL & Assocs., Inc., 15 S.W.3d 83, 88 (Tenn.2000); McCarley v. W. Quality Food Serv., 960 S.W.2d 585, 588 (Tenn.1998); Byrd v. Hall, 847 S.W.2d 208, 215 (Tenn.1993)). The moving party may carry its burden by “(1) affirmatively negating an essential element of the non-moving party’s claim; or (2) showing that the nonmoving party cannot prove an essential element of the claim at trial.” Id. (citing Hannan v. Alltel Publ’g Co., 270 S.W.3d 1, 5 (Tenn.2008); see also McCarley, 960 S.W.2d at 588; Byrd, 847 S.W.2d at 215 n. 5). A mere “assertion that the nonmoving party has no evidence” will not suffice. Id. at 84 (citing Byrd, 847 S.W.2d at 215). “[E]vidence that raises doubts about the nonmoving party’s ability to prove his or her claim is also insufficient.” Id. (citing McCarley, 960 S.W.2d at 588). Rather, “[t]he moving party must either produce evidence or refer to evidence previously submitted by the nonmoving party that negates an essential element of the nonmoving party’s claim or shows that the nonmoving party cannot prove an essential element of the claim at trial.” Id. (citing Hannan, 270 S.W.3d at 5). In order to negate an essential element, “the moving party must point to evidence that tends to disprove an essential factual claim made by the nonmoving party.” Id. (citing see Blair v. W. Town Mall, 130 S.W.3d 761, 768 (Tenn.2004)). The motion for summary judgment must be denied if the moving party does not make the required showing. Id. (citing Byrd, 847 S.W.2d at 215).

After the moving party has made a properly supported motion, the nonmoving party must “produce evidence of specific facts establishing that genuine issues of material fact exist.” Id. (citing McCarley, 960 S.W.2d at 588; Byrd, 847 S.W.2d at 215). To satisfy its burden, the nonmoving party may: (1) point to evidence of overlooked or disregarded material factual disputes; (2) rehabilitate evidence discredited by the moving party; (3) produce additional evidence that establishes the existence of a genuine issue for trial; or (4) submit an affidavit asserting the need for additional discovery pursuant to Rule 56.06 of the Tennessee Rules of Civil Procedure. Id. (citing McCarley, 960 S.W.2d at 588; accord Byrd, 847 S.W.2d at 215 n. 6). The court must accept the nonmoving party’s evidence as true, resolving any doubts regarding the existence of a genuine issue of material fact in that party’s favor. Id. (citing McCarley, 960 S.W.2d at 588). “ ‘A disputed fact is material if it must be decided in order to resolve the substantive claim or defense at which the motion is directed.’ ” Id. (quoting Byrd, 847 S.W.2d at 215). “A disputed fact presents a genuine issue if ‘a reasonable jury could legitimately resolve that fact in favor of one side or the other.’ ” Id. (quoting Byrd, 847 S.W.2d at 215).

We review a trial court’s decision regarding whether a witness qualifies as an expert witness under an abuse of discretion standard. Tire Shredders, Inc. v. ERM-North Central, Inc., 15 S.W.3d 849, 864 (Tenn.Ct.App.1999). An abuse of discretion occurs where the trial court has applied an incorrect legal standard or where its decision is illogical or unreasoned and causes an injustice to the complaining party. Mercer v. Vanderbilt Univ., Inc., 134 S.W.3d 121, 131 (Tenn.2004).

Analysis

In this case, the trial court awarded summary judgment to Defendants based upon the lack of any evidence in the record, other than the excluded testimony of Dr. Strickland, to demonstrate that Dr. Joyner’s alleged breach of the standard of care by failing to diagnose and treat Ms. Jackson’s condition earlier proximately caused her death. Further, although Defendants’ November 29 motion to exclude portions of Dr. Strickland’s testimony was not styled as such, it was, in fact, a motion in limine made to exclude references to portions of Mr. Jackson’s evidence. The trial court awarded summary judgment to Defendants immediately following its ruling on Defendants’ motion in limine where granting that motion effectively negated the essential causation element of Mr. Jackson’s claim.

In his brief to this Court, Mr. Jackson asserts that, although a trial court’s decision regarding the admission of evidence generally is afforded wide discretion, in this case a more stringent standard of review should apply because Defendants essentially used a motion in limine as a substitute for a motion for summary judgment. Mr. Jackson asserts that a more rigorous standard is mandated in light of our recent holding in Duran v. Hyundai Motor America, Inc., 271 S.W.3d 178 (Tenn.Ct.App.2008). He further asserts that, even under an abuse of discretion review, the trial court erred under Rules 702 and 703 of the Tennessee Rules of Evidence (“Rule 702” and “Rule 703,” respectively) and under McDaniel v. CSX Transportation, Inc., 955 S.W.2d 257 (Tenn.1997), and its progeny. Mr. Jackson argues that the Defendants “have not challenged the analytical framework of [his] theory of causation” and that, as a practicing physician with long experience specializing in obstetrics and gynecology, Dr. Strickland is qualified to testify as an expert witness with respect to the standard of care and whether Ms. Jackson’s death resulted from a breach of that standard by Dr. Joyner. The essence of Mr. Jackson’s argument, as we perceive it, is that Dr. Strickland is qualified to present an expert opinion and that the weight to be afforded to that opinion is a matter to be determined by a jury.

Defendants, on the other hand, assert the trial court did not err in excluding Dr. Strickland’s testimony with respect to causation. In their brief to this Court, Defendants do not dispute that Ms. Jackson’s death was caused by necrotizing fasciitis and sepsis. They also do not argue that Dr. Strickland is unqualified to testify regarding whether Dr. Joyner breached the standard of care by failing to diagnose Ms. Jackson’s condition earlier, although they deny that assertion and submit that Dr. Joyner properly referred Ms. Jackson to Dr. Summitt, who did not diagnose the infection. Rather, they contend that the trial court correctly excluded Dr. Strickland’s testimony that earlier diagnosis and treatment would have prevented Ms. Jackson’s death because the testimony was based only on Dr. Strickland’s “experience.” They further argue that, because a general gynecologist would not manage a patient after diagnosing necrotizing fasciit-is and sepsis, Dr. Strickland’s testimony “lacks trustworthiness and reliability necessary to substantially assist the trier of fact.” Defendants also rely on Rules 702 and 703 and McDaniel and its progeny in support of their argument. Defendants do not address Mr. Jackson’s assertion that their motion to exclude portions of Dr. Strickland’s testimony was an improper use of a motion in limine, but contend the trial court’s decision is subject to an abuse of discretion standard of review and that summary judgment was appropriate where Mr. Jackson could provide no evidence of causation.

In its March 2008 order granting Defendants’ motion to exclude portions of Dr. Strickland’s testimony, which was, we note, one of several motions in limine, the trial court determined that Dr. Strickland’s “experience in this particular area lacks trustworthiness and reliability necessary to substantially assist the trier of fact.” Reading the trial court’s order together with the attached excerpt of the December 20, 2007, hearing on Defendants’ motion, we perceive the trial court’s determination to be based on Dr. Strickland’s lack of direct experience in treating necrotizing fasciitis after diagnosis of the condition.

We begin our consideration of the parties’ arguments by noting that, as Mr. Jackson points out, this Court recently opined that a motion in limine should not be used as a vehicle to preclude a claim or defense or as a substitute for a motion for summary judgment. Duran v. Hyundai Motor America, Inc., 271 S.W.3d 178, 192 (Tenn.Ct.App.2008). Rather, a motion in limine provides a means by which a party may seek guidance from the trial court regarding an evidentiary question in order to formulate their trial strategy. Id. It essentially substitutes for an evidentiary objection which may be made at trial. Id. A motion in limine is not subject to the same safeguards as a motion for summary judgment or for partial summary judgment. Id.

As the parties in this case agree, the trial court must function as a gatekeeper to determine whether an expert’s proffered opinion will substantially assist the trier of fact. McDaniel v. CSX Transportation, 955 S.W.2d 257, 264 (Tenn.1997). Rule 702 provides:

[ijf scientific, technical, or other specialized knowledge will substantially assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise.

Tenn. R. Evid. 702. Rule 703 further provides:

[t]he facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence. The court shall disallow testimony in the form of an opinion or inference if the underlying facts or data indicate lack of trustworthiness.

Tenn. R. Evid. 703. Although an expert opinion should not be admitted when it is based on mere speculation, it is the function of the trier of fact to determine the weight to be given to legitimate conflicting views. McDaniel, 955 S.W.2d at 265. Admissible evidence is “tested with the crucible of vigorous cross-examination and countervailing proof’ following which a defendant may challenge its sufficiency by moving for a directed verdict. Id.

As Defendants assert, expert testimony cannot be based on mere speculation or connection to data only through the “ipse dixit” of the expert. A connection must exist between the expert’s knowledge and the basis for the expert’s opinion. Brown v. Crown Equip. Corp., 181 S.W.3d 268, 275 (Tenn.2005). There must not be an “analytical gap” between the data upon which the expert relies and the opinion offered by the expert. Id. The factors outlined in McDaniel and its progeny, however, are not exclusive. Id. An expert’s opinion may be considered reliable if the conclusions reached by the expert are straight-forward and are supported by a “ ‘rational explanation which reasonable [persons] could accept as more correct than not correct.’ ” Id. (citing State v. Stevens, 78 S.W.3d 817, 832 (Tenn.2002)) (quoting Wood v. Stihl, 705 F.2d 1101, 1107-08 (9th Cir.1983)).

This lawsuit arises from a death caused by a deadly bacterial infection and sepsis resulting from a subfascial hemato-ma following a hysterectomy. The expert testimony Mr. Jackson seeks to offer in this case is that of an obstetrician/gynecologist with extensive experience who is licensed to practice in four states. A former Air Force physician, Dr. Strickland was chief of the Division of Maternal Child Health, a division which combined pediatrics and obstetrics/gynecology. In addition to obstetrics and gynecology, Dr. Strickland has practiced in the area of infertility and endocrinology. Defendants challenge neither Dr. Strickland’s medical qualifications as a practicing obstetrician/gynecologist nor his competency to testify regarding the applicable standard of care, notwithstanding their contention that his testimony is erroneous. Rather, Defendants assert that Dr. Strickland is not sufficiently personally experienced with the treatment of necrotizing fasciitis and sepsis to opine on whether earlier diagnosis and treatment would have prevented Ms. Jackson’s death.

In its motion to exclude Dr. Strickland’s “causation testimony,” Defendants also sought to exclude Dr. Strickland’s testimony that Dr. Joyner’s documentation of Ms. Jackson’s blood values on October 8, 2003, was not “medically credible” because Ms. Jackson’s chart did not include a corresponding lab report. Dr. Strickland’s testimony regarding the lack of lab documentation in Ms. Jackson’s chart and Dr. Joyner’s notes regarding her blood levels, however, are not relevant to causation. Clearly, Dr. Strickland is qualified to testify regarding the documentation in Ms. Jackson’s chart, or lack thereof, and to offer his opinion regarding Dr. Joyner’s notes.

Defendants also sought to exclude a chart prepared by Dr. Strickland based upon Ms. Jackson’s medical records offered to assist the jury in understanding Ms. Jackson’s blood values in September and October 2003. This chart regarding Ms. Jackson’s blood levels likewise is irrelevant to the issue of causation. Rather, Dr. Strickland’s testimony regarding Ms. Jackson’s blood levels is relevant to whether Dr. Joyner should have recognized a “red flag” indicating a serious condition based upon Ms. Jackson’s decreased blood levels.

Dr. Strickland testified that the decreased blood levels indicated a “pretty significant hemorrhage, blood loss ... That should have been a red flag.” He further stated that Ms. Jackson’s blood levels the morning after surgery were “even worse” and that she was

basically in shock at that time ... But clearly her blood loss, which at that point had still not been recognized — as far as I could tell from the records, Dr. Joyner has not even still recognized that she’d lost that much blood. At that point, that was half her blood volume gone.

Dr. Strickland stated, “[y]eah, he [Dr. Joyner] breached the standard of care at this point by failing to recognize that she had a postoperative blood loss, and failing to determine where that blood was going.... He simply transfused her.” When asked about his opinion regarding Dr. Joyner’s explanation, Dr. Strickland stated that Dr. Joyner’s explanation was “not medically credible.”

In short, Dr. Strickland’s testimony regarding Ms. Jackson’s blood levels is relevant to the question of whether Dr. Joyner should have recognized the hematoma or hemorrhage and as to whether Dr. Joyner breached the standard of care. Dr. Strickland is clearly qualified to testify regarding this issue and his proffered visual aid does not present a danger of unfair prejudice. Defendants further sought to exclude Dr. Strickland’s testimony regarding Ms. Jackson’s medical expenses. We cannot fathom how testimony regarding Ms. Jackson’s medical expenses is relevant to causation.

Finally, Defendants sought to exclude Dr. Strickland’s testimony that Ms. Jackson would have survived had she undergone treatment to evacuate the hematoma in a timely fashion. Upon review of the record, including the expert depositions, we cannot say such evidence is inadmissa-ble or that Dr. Strickland is not qualified to offer an expert opinion on this issue. It is undisputed in this case that Ms. Jackson died as a result of sepsis/necrotizing fasci-itis. Dr. Strickland testified that Dr. Joyner’s breach of the standard of care

allowed [Ms.] Jackson to develop a severe sepsis, manifested by — physically, by necrotizing fasciitis and also manifested by, basically, circulatory collapse from that sepsis from which she eventually died. It had gotten so bad — her sepsis had gotten so bad by the time it was finally recognized, that, in spite of extreme measures, including three surgical procedures and referral to a major medical center, she had become so sick she could not survive that injury. And that directly resulted [from] Dr. Joyner’s breaches that I’ve already mentioned.

Dr. Strickand was asked whether Ms. Jackson would have “died if Dr. Joyner had met the standard of care as [Dr. Strickland] described it[.]” Dr. Strickland replied that, more likely than not, she would not have

[b]ecause this problem could have been — if it had been identified and evaluated and managed in a timely fashion, it could have been treated well before she became so severely septic that she was no longer salvageable. There was plenty of time to recognize that she was getting sick, to intervene. She would have required an operation, no question about that.... But, had that operation been done in a timely fashion, she would have been salvageable.

When asked what operation he was referring to, Dr. Strickland replied:

[t]he operation of getting in and evacuating that hematoma, that abscess cavity, and debriding necrotic tissue and allowing her to heal up. Had that been done in a timely fashion, the damage would not have been severe, she would not have been as severely septic, and she would have survived.

Dr. Strickland was asked whether, in his opinion, it was more likely than not that treatment rendered after October 8, 2003, was likely to have saved Ms. Jackson’s life. He replied, “[m]y opinion is it probably would not.” In light of his experience, Dr. Strickland is qualified to offer this expert opinion. The weight to be afforded to Dr. Strickland’s testimony in light of his lack of direct experience treating infectious disease is a matter to be determined by the finder of fact.

The issue presented by this appeal is not whether Dr. Joyner breached the standard of care with respect to the choice of treatment of the necrotizing fasciitis and sepsis which caused Ms. Jackson’s death. The parties do not dispute that Ms. Jackson died as a result of becoming severely septic. The dispute does not revolve around the treatment of the infection per se. Rather, this lawsuit involves a determination of whether Dr. Joyner breached the standard of care by failing to diagnose the hematoma, and whether the late diagnosis and treatment of the subfascial hematoma caused the sepsis/infection to become so severe that Ms. Jackson could not have survived.

After reviewing the depositions contained in the record, we believe Dr. Strickland’s testimony regarding whether Ms. Jackson’s subfascial hematoma should have been diagnosed earlier following the hysterectomy and whether earlier diagnosis, and, accordingly, earlier treatment of the resulting sepsis, would have prevented her death is probative and is not outweighed by the danger of unfair prejudice in this case. The weight to be afforded Dr. Strickland’s opinion following cross-examination and Defendants’ proof is a matter to be determined by the trier of fact.

Holding

In light of the foregoing, we vacate the trial court’s award of summary judgment to Defendants and reverse the trial court’s order excluding portions of Dr. Strickland’s testimony. This matter is remanded to the trial court for further proceedings. Costs of this appeal are taxed to the Appellees, Johnny Joyner, M.D. and Jackson Clinic, P.A., for which execution may issue if necessary.


source: Caselaw Access Project

author: HOLLY M. KIRBY, J.,

license: Public Domain

text:
    William ALLGOOD and Rose Allgood v. GATEWAY HEALTH SYSTEMS d/b/a Gateway Medical Center and Dr. Christopher Hoffman.
    Court of Appeals of Tennessee, Western Section, at Nashville.
    March 26, 2009 Session.
    Sept. 22, 2009.
    Rehearing Denied Oct. 20, 2009.
    Permission to Appeal Denied by Supreme Court April 19, 2010.

      Debra A. Wall, Clarksville, Tennessee, for the Plaintiffs/Appellants William All-good and Rose Allgood.
    John Eskew, Suzanne M. Pearson, Dan L. Nolan, and Jennifer A. Deen, Clarks-ville, Tennessee, for the Defendant/Appel-lee Dr. Christopher Hoffman.
   OPINION

HOLLY M. KIRBY, J.,

delivered the opinion of the Court,

in which DAVID R. FARMER, J., and J. STEVEN STAFFORD, J., joined.

This is an appeal from a grant of summary judgment. The plaintiff patient filed a lawsuit against the defendant physician alleging medical negligence. The patient attempted personal service on the physician by leaving the summons and the complaint at the reception desk of the hospital at which the physician practiced. Eventually, the summons and the complaint were delivered to the physician. The summons stated that service would be made by the commissioner of insurance or the U.S. mail. In his answer to the complaint, the physician asserted insufficiency of service of process, and stated that the summons indicated that service was made by the commissioner of insurance through the U.S. mail. No new process was issued. After passage of time, the limitations period for the claim against the physician elapsed. The physician then filed a motion for summary judgment, alleging that the attempt at personal service was insufficient because no one at the hospital was authorized to accept service of process on his behalf, service was not re-issued so as to toll the statute of limitations, and as a result, the patient’s claims were time-barred. The trial court granted summary judgment in favor of the physician. The patient appeals, arguing that the physician waived the defense of insufficiency of service of process because his answer did not include the facts supporting the defense, as required by Rule 8.03 of the Tennessee Rules of Civil Procedure. We reverse, finding that the defendant physician failed to comply with Rule 8.03, thereby waiving the defense.

Facts and Procedural History

On February 2, 2006, Plaintiff/Appellant William Allgood suffered a fall at Defendant Gateway Medical Center (“Gateway”) while under the care of Defendant/Appel-lee Christopher Hoffman, M.D. (“Dr. Hoffman”). At the time, Dr. Hoffman was a hospitalist with staff privileges at Gateway. He was not an employee of Gateway; rather, he was employed by Eagle Hospital Physicians.

On September 5, 2006, William Allgood and his wife Rose Allgood (“the Allgoods”) filed this medical negligence lawsuit against Gateway and Dr. Hoffman for injuries that Mr. Allgood sustained as a result of the fall. A summons was issued for both Gateway and Dr. Hoffman on September 6, 2006.

Gateway was served by Ernie Rice, a private process server, on October 14, 2006. On October 28, 2006, the summons and complaint for Dr. Hoffman was received by Linda Woodruff (“Ms. Wood-ruff’), who was employed by Eagle Hospital Physicians as the hospitalist coordinator stationed at Gateway. According to Ms. Woodruffs affidavit, she received the complaint and summons from a volunteer or hospital employee receptionist in an open envelope with a “post-it” note stating that the contents were for one of the Eagle Hospital physicians. Ms. Woodruff testified in the affidavit that she did not know when the papers were delivered, nor did she know how they were delivered to Gateway. She said that she gave the summons and complaint to Dr. Hoffman. The summons included three lines that could be marked to indicate the method of service. The line that was marked stated that service would be made by the “COMMISSIONER OF INSURANCE OR OTHER (SPECIFY),” and on the line next to “(SPECIFY),” the words “U.S. Mail” were handwritten.

On November 27, 2006, Dr. Hoffman filed his answer to the Allgoods’ complaint, denying liability. The answer asserted the affirmative defense of comparative fault and also asked the trial court “pursuant to Tennessee Rule of Civil Procedure 12.02(5) to dismiss the complaint for insufficiency of service of process on grounds that the return certifying service of process on [Dr. Hoffman] shows that he was served by the commissioner of insurance through the U.S. mail.”

The return of service was filed on December 7, 2006. The return stated in pertinent part: “I Ernie Rice SERVED THIS SUMMONS AND COMPLAINT/PETITION ON Gateway Medical Systems IN THE FOLLOWING MANNER: By delivery to above at 11:W a.m. in Clarksville, Montgomery Co., TN.” Discovery ensued, and no other attempt at service on Dr. Hoffman was made.

On July 25, 2007, Dr. Hoffman responded to the Allgoods’ first set of interrogatories. One of the interrogatories asked Dr. Hoffman to state the facts supporting his affirmative defenses. Dr. Hoffman’s response included the facts underlying the affirmative defense of comparative fault, but included no facts relating to insufficiency of service of process.

On March 14, 2008, Dr. Hoffman filed a motion for summary judgment. As grounds, the summary judgment motion stated that the Allgoods’ claims were barred by the applicable statute of limitations because proper service of process was never made on Dr. Hoffman. In his affidavit submitted in support of the motion for summary judgment, Dr. Hoffman testified that he was not personally served with the summons and complaint; rather, he was given an open envelope with the summons and complaint by Ms. Woodruff, whose affidavit stated that she received the complaint and summons from an unnamed hospital volunteer or employee. Dr. Hoffman stated in his affidavit that Gateway was not authorized to accept service of process on his behalf and that he did not appoint any hospital employee or volunteer to accept service of process for him.

The summary judgment motion noted that, although on its face the summons stated that he would be served through the commissioner of insurance or the U.S. mail, there was no provision allowing for Dr. Hoffman to be served via the commissioner of insurance and the record contained no indication that process was issued for service through the commissioner of insurance or the U.S. mail. Dr. Hoffman argued that the Allgoods’ attempt at service was not effective under either Rules 4.04(1) or 4.04(5) of the Tennessee Rules of Civil Procedure. Under Rule 4.04(1), Dr. Hoffman contended, because there was no attempt to evade service, service must be made by personally serving him or his agent. However, Dr. Hoffman stated, he was never personally served and he had not appointed an agent to accept service on his behalf. Under Rule 4.04(5), even assuming that service as to Dr. Hoffman would have been effective had it been made on Ms. Woodruff, service was in fact not effective because Ms. Woodruff was not personally served. Therefore, the attempted service by delivering the summons and complaint to an unnamed Gateway volunteer or employee was ineffective under any provision of Rule 4.04. Accordingly, Dr. Hoffman maintained that, under Rule 3, because he was not served within ninety days of the September 6, 2006 issuance of process, and the Allgoods did not have process re-issued within a year, the commencement of the action did not toll the statute of limitations and the Allgoods’ claims were barred.

In response to Dr. Hoffman’s motion for summary judgment, the Allgoods argued that Dr. Hoffman waived the defense of insufficiency of service of process because he failed to state the factual basis supporting the defense as required by Rule 8.03. Although Dr. Hoffman’s answer included a factual basis for the defense, the statement in his answer was inaccurate in that it stated that service was made by the commissioner of insurance through the U.S. mail. The answer did not state that Dr. Hoffman had not given anyone at Gateway authority to accept service of process on his behalf. The Allgoods also argued that Dr. Hoffman was estopped from asserting a defense of insufficiency of service of process because he participated in discovery and failed to include the defense of insufficiency of service of process in his response to the Allgoods’ interrogatory seeking the factual basis for his affirmative defenses.

A hearing on Dr. Hoffman’s motion for summary judgment was held on May 23, 2008, and the trial court’s ruling was issued on May 30, 2008. The trial court found that the attempted service on Dr. Hoffman was insufficient because the All-goods served neither he nor an agent authorized to accept service of process for him, and also failed to re-issue process in time to preserve their cause of action. The trial court also rejected the Allgoods’ argument that Dr. Hoffman waived the defense of insufficiency of service of process by misstating the factual basis for the defense in his answer. At the time Dr. Hoffman filed his answer, he knew that there was a deficiency in the service of process, in that it was not made by the commissioner of insurance or through the mail, as stated on the summons. However, at that time, Dr. Hoffman was not aware of true deficiencies in the service of process because the return of service was not filed until December 2006, after Dr. Hoffman filed his answer. The return, of course, stated that personal service was attempted by delivering the summons and complaint to an unnamed person at Gateway. The trial court found that, “[a]s the result of [Dr. Hoffman’s] answer, [the Allgoods were] on sufficient notice that [Dr. Hoffman] was contending that there was a problem with service of process and [were] aware of the factual basis and grounds in support of the Motion to Dismiss that were within [Dr. Hoffman’s] knowledge.” The trial court emphasized that the Allgoods were aware that the return of service was “blatantly defective” in that it indicated that service was made on Gateway, but nevertheless relied on the original service “and did not cure the defects in service by reissuing process.” The trial court also rejected the Allgoods’ argument that Dr. Hoffman should be estopped from asserting insufficiency of service of process because he participated in discovery without stating the factual basis for his defense. The Allgoods had asserted to the trial court that, by waiting until after the statute of limitations had run, Dr. Hoffman sought to “sandbag” the Plaintiffs. The trial court found that it was incumbent upon the Plaintiffs to reissue process to preserve their cause of action, but they failed to do so.

On July 11, 2008, the trial court entered an order, incorporating the findings made in its memorandum opinion, granting Dr. Hoffman’s motion for summary judgment, and certifying the judgment as final under Rule 54.02. The Allgoods now appeal.

Issues on Appeal and Standard of Review

On appeal, the Allgoods raise two issues for our review. First, whether Dr. Hoffman waived the defense of insufficiency of service of process, such that summary judgment should not have been granted. Second, whether Dr. Hoffman is estopped from asserting the defense based on his participation in discovery.

Because only questions of law are involved, we review a trial court’s grant of summary judgment de novo with no presumption of correctness. Martin v. Norfolk S. Ry. Co., 271 S.W.3d 76, 84 (Tenn.2008) (citing Blair v. W. Town Mall, 130 S.W.3d 761, 763 (Tenn.2004)). In reviewing a trial court’s grant of summary judgment, the appellate court is to determine whether the requirements of Tennessee Rule of Civil Procedure 56 have been met. Staples v. CBL & Assocs., Inc., 15 S.W.3d 83, 88 (Tenn.2000) (citations omitted). Summary judgment is appropriate when “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Tenn. R. Civ. P. 56.04.

Analysis

We first address the Allgoods’ argument that Dr. Hoffman waived the defense of insufficiency of service of process. The Allgoods insist that Dr. Hoffman’s answer did not comply with Rule 8.03’s requirement that a party “set forth affirmatively facts in short and plain terms relied upon to constitute” that party’s affirmative defenses. Tenn. R. Civ. P. 8.03. Although Dr. Hoffman’s answer stated that he was challenging service of process “on grounds that the return certifying service of process on [Dr. Hoffman] shows that he was served by the commissioner of insurance through the U.S. mail,” the All-goods allege that it does not comply with Rule 8.03 because it misstates the factual basis for the defense, and does not state that Dr. Hoffman is challenging the attempted personal service on the basis that no one at Gateway was authorized to accept service of process on his behalf. In support of this argument, the Allgoods cite Barker v. Heekin Can Co., 804 S.W.2d 442 (Tenn.1991).

In Barker, the plaintiff initiated a worker’s compensation action against her employer, the Heekin Can Company, for an injury allegedly sustained during the course of her employment. Id. at 442. The plaintiffs first summons was returned un-exeeuted, with the following notation by the process server: “no longer in business here; sold out.” Id. Between the time of the plaintiffs purported injury and the commencement of her action, Heekin Can sold its Memphis plant to an entity known as Peacher Schwank Plastics. Id. at 443. An alias summons was then issued, directed to “Heekin Can Company, a/k/a Pearcher [sic] and Schwank Plastics.” Id. at 442. The return of service had the following notation: “served process ... by delivering ... a copy of the summons and a copy of the complaint to ... Heekin Can Company, a/k/a Pearcher [sic] and Schwank Plastics, by serving: Harold Townsend, Gen. Mgr.” Id.

Heekin Can filed an answer and a motion to dismiss in its answer, stating the following grounds: “(a) That this Court lacks jurisdiction over the person of this corporate defendant; (b) That there has been an insufficiency of process in this cause; (c) That there has been an insufficiency of service of process in this cause.” Id. at 443. The motion included no factual allegations to support these grounds. Id. Several years later, the defendant filed a motion for summary judgment, alleging that Heekin Can and Peacher Schwank Plastics were separate entities, with their only relationship being that of buyer and seller of the Memphis plant, and therefore, the service made on Peacher Schwank Plastics was insufficient as to Heekin Can. Id. The trial court granted summary judgment in favor of Heekin Can. Id. The plaintiff appealed.

The Tennessee Supreme Court reversed the decision of the trial court, holding that Heekin Can waived the defense of insufficiency of service of process by failing to include “in its motion to dismiss a recitation of those facts, ‘in short and plain terms,’ upon which it was relying for dismissal” as required by Rule 8.03. Id. at 444. It found that the defendant should have stated in the motion to dismiss that Heekin Can and Peacher Schwank Plastics were separate entities, that Mr. Townsend did not have authority to accept service of process for Heekin Can, and that Heekin Can no longer did business in Tennessee. Id. The Court explained:

The reason for such a rule is obvious. As noted in Goss [v. Hutchins, 751 S.W.2d 821 (Tenn.1988)], the filing of a “specific negative averment will likely result in a prompt curative amendment by plaintiff,” id. at 826, thus preventing the dismissal of an otherwise meritorious claim on purely technical grounds.

Barker, 804 S.W.2d at 444. The Barker court observed that defendant Heekin Can “waited over two years to plead facts known to it ... from the very beginning.” Id. It commented that “[t]he Rules of Civil Procedure are not intended as a trap for the unwary, but as a means of ‘securing] the just, speedy and inexpensive determination of every action.’ ” Id. (quoting Tenn. R. Civ. P. 1). On this basis, it held that the defendant waived the defense of insufficiency of service of process and reversed the grant of summary judgment. See id. at 444-45.

In response to the Allgoods’ citation of Barker, Dr. Hoffman distinguishes Barker from the facts in this case. In Barker, Dr. Hoffman notes, the defendant did not include any factual basis to support the defense of insufficiency of service of process, despite knowing the supporting facts “from the very beginning.” See id. at 444. In the case at bar, Dr. Hoffman argues, he provided all of the information regarding the deficiencies in the service of process available to him at the time that he filed his answer. He insists that he cannot be expected to include facts in his answer that were unknown to him when it was filed. Dr. Hoffman asserts that he would have included different facts in his answer had he known them at the time, but argues that the facts that were included in his answer provided the Allgoods with the same notice of a possible defect in the service of process that they would have received had he pled the other facts. Therefore, he argues that he complied with the requirements of Rule 8.03.

Insufficiency of service of process is an affirmative defense that must be presented in the defendant’s answer or in a pre-answer motion. Tenn. R. Civ. P. 12.02(5); see Eaton, 2008 WL 4963512, at *3. Although Rule 12 does not contain a specificity requirement, Rule 8 “clearly does.” Barker, 804 S.W.2d at 444. Rule 8.03 requires that a party “set forth affirmatively facts in short and plain terms relied upon to constitute ... an affirmative defense.” Tenn. R. Civ. P. 8.03. Failure to comply with Rule 8.03 will result in a waiver of the defense. Barker, 804 S.W.2d at 444.

Like the defendant in Barker, Dr. Hoffman sought dismissal of the complaint in his answer, asserting the defense of insufficiency of service of process. Unlike the defendant in Barker, Dr. Hoffman included in his answer facts that were known to him at the time.

Dr. Hoffman argues that he satisfied Rule 8.03 because the facts in his answer provided the Allgoods with the same notice that they would have received had he pled the facts that he later discovered, namely “that a possible defect in the manner of service of process exists.” We respectfully disagree. This type of general notice was clearly found inadequate by the Supreme Court in Barker. If simply putting the plaintiff on notice that there may be a problem with service of process were enough to satisfy Rule 8.03, then the Barker Court would not have found the defense to have been waived, because the defendant in Barker stated in its answer “[t]hat there has been an insufficiency of service of process in this cause.” Id. at 443. Barker clearly holds that mere notice of a possible problem is insufficient to satisfy Rule 8.03. Rather, Rule 8.03 requires that a defendant state the facts that support the defense.

Dr. Hoffman rightly argues that he cannot be expected to include facts in his answer that were unknown to him. However, when the return of service was filed, Dr. Hoffman became aware that the facts alleged in his answer to support his defense were not accurate. As in Barker, this fact was “peculiarly within the knowledge of’ Dr. Hoffman. Id. at 444. Despite this, there was no attempt by Dr. Hoffman to amend his answer or otherwise correct the misimpression created. Indeed, the misstated facts in Dr. Hoffman’s answer were, from the Plaintiffs’ perspective, worse than having stated no facts at all; when considered with Dr. Hoffman’s failure to address insufficiency of service of process in response to the Allgoods’ interrogatory, this could have led the Plaintiffs to conclude that the original service of process on Dr. Hoffman was in fact effective.

The trial court correctly observed that the Allgoods could easily have had process re-issued, to ensure effective service of process and preservation of their cause of action. This is certainly true. However, the issue raised to us on appeal does not relate to the Plaintiffs’ failure to ensure effective service of process. It relates only to whether Dr. Hoffman failed to comply with Rule 8.03 and thus waived the defense of insufficiency of service of process. Under the facts of this case, we must conclude that he did not comply with Rule 8.03, that the defense is waived, and that the trial court erred in granting summary judgment in favor of Dr. Hoffman. This holding pretermits all other issues raised on appeal.

Conclusion

The decision of the trial court is reversed and the case is remanded for further proceedings consistent with this opinion. The costs of this appeal are taxed to the Appellee Dr. Christopher Hoffman, for which execution may issue if necessary.

ORDER

Following the filing of this Court’s Opinion on September 2, 2009, Appellee Christopher Hoffman, M.D., filed a petition for rehearing. Appellee’s petition for rehearing is DENIED.

IT IS SO ORDERED.

      . Service on Gateway is not at issue.

      . Rule 4.04(1) provides that service shall be made as follows:
      Upon an individual other than an unmarried infant or an incompetent person, by delivering a copy of the summons and of the complaint to the individual personally, or if he or she evades or attempts to evade service, by leaving copies thereof at the individual's dwelling house or usual place of abode with some person of suitable age and discretion then residing therein, whose name shall appear on the proof of service, or by delivering the copies to an agent authorized by appointment or by law to receive service on behalf of the individual served.
      Tenn. R. Civ. P. 4.04(1).

      . Rule 4.04(5) provides that service shall be made as follows:
      Upon a nonresident individual who transacts business through an office or agency in this state, or a resident individual who transacts business through an office or agency in a county other than the county in which the resident individual resides, in any action growing out of or connected with the business of that office or agency, by delivering a copy of the summons and of the complaint to the person in charge of the office or agency.
      Tenn. R. Civ. P. 4.04(5).

      . This assumption was because Dr. Hoffman lived in Williamson County and worked in Montgomery County. Ms. Woodruff was the hospitalist coordinator at Gateway for Dr. Hoffman's employer, Eagle Hospital Physicians.

      . Rule 3 provides as follows:
      All civil actions are commenced by filing a complaint with the clerk of the court. An action is commenced within the meaning of any statute of limitations upon such filing of a complaint, whether process be issued or not issued and whether process be returned served or unserved. If process remains unissued for 90 days or is not served within 90 days from issuance, regardless of the reason, the plaintiff cannot rely upon the original commencement to toll the running of a statute of limitations unless the plaintiff continues the action by obtaining issuance of new process within one year from issu-anee of the previous process or, if no process is issued, within one year of the filing of the complaint.
      Tenn. R. Civ. P. 3.

      . The trial court noted that the process server, Ernie Rice, could not remember how he served process. It found that Rice attempted service by delivering the summons and complaint to someone at Gateway. This finding is not disputed on appeal.

      . The Allgoods also note that Dr. Hoffman had the opportunity to include the correct factual basis for this defense in his response to their interrogatory, but failed to do so.

      . At the time of the Barker decision, Rule 8.03 required a party to "set forth affirmatively facts ... relied upon to constitute ... an avoidance or affirmative defense." Barker, 804 S.W.2d at 444 (emphasis added). Since then, Rule 8.03 has been amended to remove the term "avoidance.” Although the Barker case refers to insufficiency of service of process as an “avoidance,” id., it is also an affirmative defense. See Eaton v. Portera, No. W2007-02720-COA-R3-CV, 2008 WL 4963512, at *3 (Tenn.Ct.App. Nov. 21, 2008). Thus, removal of the term "avoidance” from Rule 8.03 does not affect our analysis.

      . Dr. Hoffman also notes that paragraph three of his answer denied an employment or agency relationship with Gateway, and seems to suggest that this averment should have put the Allgoods on notice that the attempted service of process was ineffective. This argument is without merit.


author: Justice GUZMAN

text:
    PRESIDIO INDEPENDENT SCHOOL DISTRICT, Petitioner, v. Robert SCOTT, as Commissioner of Education, Respondent.
    No. 08-0958.
    Supreme Court of Texas.
    Argued Jan. 19, 2010.
    Decided April 23, 2010.

      Larry A. Baskind, Linda Aileen Samples, Baskind & Hosford, PC, Ken Slavin, Kemp Smith, LLP, El Paso, TX, for Petitioner.
    George A. Warner Jr., Greg W. Abbott, Attorney General, Clarence Andrew Weber, First Assistant Attorney General, David S. Morales, Office of the Attorney General, Bill Davis, Daniel L. Geyser, Asst. Solicitor General, James C. Ho, Solicitor General, Office of Solicitor General, Austin, TX, for Respondent.
    Richard L. Arnett, Brim, Arnet, Robi-nett, Hanner, Conners & McCormick, P.C., Austin, TX, for other interested party Samuel Papa.
   Justice GUZMAN

delivered the opinion of the Court.

At issue in this case is whether Texas Education Code § 21.307 requires the Commissioner of Education’s consent before an appeal of his decision in a dispute between a teacher and a school district can proceed in a Travis County district court. After the Commissioner adjudicates the dispute between a teacher and a school district, § 21.307(a) allows “[ejither party” to appeal the Commissioner’s decision in one of two possible venues: (1) a district court in the school district’s county; or (2) “if agreed by all parties, a district court in Travis County.” Here, both Presidio Independent School District (Presidio) and the teacher agreed to venue in Travis County, but the Commissioner, who must be joined to the appeal under § 21.307(c), did not agree. We must determine whether the Commissioner’s consent is required under the statute, and we conclude that it is not. Accordingly, we reverse the judgment of the court of appeals and remand to the trial court for further proceedings.

I. Background

Presidio does not allow its teachers to use corporal punishment on students. Following an incident in which a teacher violated this policy, Presidio provided the teacher with a notice of termination and the matter was referred to a hearing examiner, thereby initiating the statutory administrative process. After a full eviden-tiary hearing, the examiner recommended to the Presidio board of trustees that the teacher be terminated for cause, and the board agreed, adopting the recommendation. The teacher then filed a petition for review with the Commissioner of Education, who reversed the board’s decision and determined that the teacher should be reinstated or paid one year’s salary in lieu of reinstatement.

Presidio appealed, choosing Travis County district court as its venue, a choice in which the teacher concurred. The Commissioner, however, objected to review in Travis County, contending that because he is a party to the appeal, his consent is a jurisdictional prerequisite to venue in Travis County under Texas Government Code § 311.034. The Commissioner filed a plea to the jurisdiction on that basis, which the trial court denied.

The court of appeals affirmed, but on rehearing, a divided panel agreed with the Commissioner. The majority determined that “the legislature saw fit to grant the Commissioner (like school districts and teachers) effectively a veto power against having to defend judicial appeals in Travis County district court.” 266 S.W.3d at 539. The dissent reasoned that the Commissioner does not come within the definition of “party” in § 21.307(a)(2) because “the ‘party' would be appealing the Commissioner’s decision, and the Commissioner presumably would not appeal his own decision.” 266 S.W.3d at 542 (Patterson, J., dissenting).

Presidio petitioned this Court for review, which we granted. 52 Tex. Sup.Ct. J. 1134 (Aug. 21, 2009). We have jurisdiction over this interlocutory appeal because there is a dissent in the court of appeals. See Tex. Gov’t Code § 22.225(c); see also Tex. Civ. PRAC. & Rem.Code § 51.014(a)(8) (permitting appeal from an interlocutory order that denies a plea to the jurisdiction filed by a governmental unit). We review a trial court’s order granting or denying a plea to the jurisdiction de novo. See Houston Mun. Employees Pension Sys. v. Ferrell, 248 S.W.3d 151, 156 (Tex.2007); Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225-26 (Tex.2004).

II. Analysis

Section 21.307 grants teachers and school districts the right to seek judicial review of the Commissioner’s decision. The question presented is whether § 21.307(a)(2) requires the Commissioner’s consent before the appeal can proceed in a Travis County district court.

A. Statutory Framework

Before parsing the language of § 21.307, a brief survey of the surrounding statutory landscape provides a helpful context for that section’s use of the term “party” by outlining how this type of case proceeds through the various levels of review. If a school district seeks to terminate a teacher, the teacher may request a hearing before a certified hearing examiner who develops the record, conducts a bench trial, and ultimately makes a written recommendation that includes proposed findings of fact, conclusions of law, and if the examiner so chooses, a proposal for granting relief. See Tex. Educ.Code §§ 21.251-.257. Next, the school district’s board of trustees or board subcommittee considers the recommendation and may adopt, reject, or change the hearing examiner’s conclusions of law or proposal for granting relief. Id. § 21.259.

If dissatisfied with the board’s decision, the teacher may appeal to the Commissioner of Education. Id,. § 21.301(a). The Commissioner “shall review the record of the hearing before the hearing examiner and the oral argument before the board of trustees or board subcommittee.” Id. § 21.301(c). And, with exceptions not relevant here, the Commissioner shall consider the appeal “solely on the basis of the local record and may not consider any additional evidence or issue.” Id. If the board terminates a teacher’s contract, the Commissioner may not substitute his judgment for the board’s unless its decision was “arbitrary, capricious, or unlawful or is not supported by substantial evidence.” Id. § 21.303(b). Once the teacher and school district receive notice of the Commissioner’s decision, id. § 21.304, a party may file a request for rehearing, id. § 21.3041(a). “Either party” may then appeal the Commissioner’s decision to a district court. Id. § 21.307(a).

From this statutory scheme, it is reasonable to conclude that the teacher and the school district are adverse “parties” as that term is normally used. See Black’s Law Dictionary 1232 (9th ed. 2009) (defining “party” as “[o]ne by or against whom a lawsuit is brought”). The Commissioner is a neutral arbiter performing a limited review of the board’s decision and does not have a direct stake in the outcome.

B. Statutory Construction

With that context in mind, we turn to § 21.307. In construing statutes, we ascertain and give effect to the Legislature’s intent as expressed by the statute’s language. City of Rockwall v. Hughes, 246 S.W.3d 621, 625 (Tex.2008). Where text is clear, it is determinative of that intent, Entergy Gulf States, Inc. v. Summers, 282 S.W.3d 433, 437 (Tex.2009), and we give meaning to the language consistent with other provisions in the statute, Tex. Dep’t of Transp. v. City of Sunset Valley, 146 S.W.3d 637, 642 (Tex.2004). Our practice when construing a statute is to recognize that “the words [the Legislature] chooses should be the surest guide to legislative intent.” Entergy, 282 S.W.3d at 437 (quoting Fitzgerald v. Advanced Spine Fixation Sys., Inc., 996 S.W.2d 864, 866 (Tex.1999)). We thus construe the text according to its plain and common meaning unless a contrary intention is apparent from the context or unless such a construction leads to absurd results. City of Rockwall, 246 S.W.3d at 625-26. We also presume that the Legislature intended a just and reasonable result by enacting the statute. Id. at 626 (citing Tex. Gov’t Code § 311.021(3)).

Section 21.307(a) grants parties the right to appeal the Commissioner’s decision and identifies two possible venues:

(a) Either party may appeal the commissioner’s decision to:
(1) a district court in the county in which the district’s central administrative offices are located; or
(2) if agreed by all parties, a district court in Travis County.

Tex. Educ.Code § 21.307(a). Subsection (a) begins by allowing “either party” to appeal the Commissioner’s decision. While this subsection does not define the term “party,” no one disputes that the word refers to the teacher and the school district, who were the parties before the Commissioner and are affected by the Commissioner’s decision. The Commissioner is logically excluded from the scope of “either party” because he would not appeal his own decision. Similarly, throughout the subchapter of which § 21.307 is a part, the Commissioner is distinguished from a “party.” It follows that in subsection (a)(2), which is subordinated to the introductory “either party” clause, the scope of “all parties” who must consent to venue in Travis County is limited to those parties who have the ability to initiate further review of the Commissioner’s decision — teachers and school districts. Accordingly, we hold that the Commissioner’s consent is not required under § 21.307(a)(2) for a judicial appeal of the Commissioner’s decision in Travis County.

The Commissioner’s primary textual argument to the contrary focuses on subsection (c), in which the Commissioner, along with the parties in the administrative hearing before the Commissioner, are made parties to the judicial appeal: “The commissioner and each party to the appeal to the commissioner must be made a party to an appeal under this section.” Tex. Educ.Code § 21.307(c). Because the Commissioner is made a party, he argues that this newly conferred status reaches back to include him in the “all parties” that must consent to venue in Travis County. We disagree. The Legislature’s decision to designate the Commissioner as a party to the appeal does not automatically import that meaning to every other use of the term “party” regardless of the immediate context. The Commissioner cannot selectively choose a particular use of “party” into which his chosen definition is poured while at the same time distinguishing every other use of the term where that meaning is contextually impossible. Courts must not give the words used by the Legislature an “exaggerated, forced, or constrained meaning.” Cities of Austin v. Sw. Bell Tel. Co., 92 S.W.3d 434, 442 (Tex.2002). Disregarding twenty-one uses of “party” in the surrounding context, all of which do not include the Commissioner, in favor of the single use that does is precisely the sort of “exaggerated, forced, or constrained meaning” that we eschew. See supra note 3.

In addition, subsections 21.307(a) and (c) contemplate different objectives. Subsection 21.307(a) gives the teacher or school district the right to appeal and two venue options, one of which is conditioned on securing the consent of the opposing party. Subsection 21.307(c), on the other hand, merely describes who must appear in the district court. While the Commissioner is “made a party” in subsection (c), nothing in that subsection or the statute as a whole suggests a legislative intent to allow the Commissioner to determine whether an appeal may be filed in the county of his residence. See Burton v. Rogers, 504 S.W.2d 404, 406 (Tex.1973) (noting that statewide officials are deemed to reside in Travis County, the seat of the state government, for venue purposes).

The Commissioner also offers a policy reason to justify his purported veto power: preventing forum-shopping by the losing party. Generally, forum-shopping occurs when a party attempts to obtain a perceived advantage over its adversary by choosing the most favorable venue. See, e.g., Walker v. Packer, 827 S.W.2d 833, 849 n. 3 (Tex.1992) (noting that forum-shopping includes trying “to obtain a trial judge more likely to provide a more favorable ruling”); Black’s Law Dictionary 726 (9th ed. 2009) (defining forum-shopping as “[t]he practice of choosing the most favorable jurisdiction or court in which a claim might be heard”). But we fail to envision a scenario in which forum-shopping occurs when both parties to the dispute agree to pursue the appeal in Travis County. And when the Commissioner withholds consent from Travis County to obtain an advantage (e.g., a more favorable precedent in the local forum), he too arguably engages in forum-shopping. As a neutral arbiter of the decision being appealed, the Commissioner should be indifferent to the venue in which the appeal is filed. We are not persuaded that the Legislature intended to combat forum-shopping by giving the Commissioner the power to block review in Travis County.

Finally, the Commissioner argues that his adjudicatory role in this context has a policy-making function by ensuring uniform and predictable interpretations of state law, and thus he has an active role in litigation before the courts. But the Commissioner reviews the school board’s decision “solely on the basis of the local record and may not consider any additional evidence or issue,” Tex. Educ.Code § 21.301(c), and he may not substitute his judgment “unless [the board’s] decision was arbitrary, capricious, or unlawful or is not supported by substantial evidence,” id. § 21.303(a). Further, the district court employs much the same standard. Id. § 21.307(e)-(f). The Commissioner’s limited role coupled with the deferential review by the district court belies any attempt to classify the Commissioner’s task as making policy. In this type of judicial appeal, the Commissioner is no more interested in having his decision upheld than is any lower court when reviewed by a higher court.

III. Conclusion

We interpret § 21.307(a) according to its plain language, language that excludes the Commissioner from those parties who must consent to a judicial appeal in Travis County. Accordingly, we reverse the judgment of the court of appeals and remand the case to the trial court for further proceedings.

      . Because the Commissioner's consent is not required to appeal in Travis County, we do not reach the second issue presented: whether the Commissioner’s consent is a statutory prerequisite to jurisdiction under Texas Government Code § 311.034.

      . See Tex. Educ.Code § 21.302(a) ("If a party alleges that procedural irregularities that are not reflected in the local record occurred at the hearing before the hearing examiner, the commissioner may hold a hearing....”).

      . See Tex. Educ.Code § 21.301(c) ("The commissioner, on the motion of a party or on the commissioner's motion, may hear oral argument.”); id. § 21.302(a) ("If a parly alleges ... procedural irregularities ..., the commissioner may hold a hearing for the presentation of evidence on that issue. The party alleging .. . procedural irregularities ... shall identify the specific alleged defect and its claimed effect ....”); id. § 21.304(c) ("The commissioner shall send a copy of the decision to each party or the party’s representative by certified mail.... A party is presumed to be notified of the decision on the date the decision is received .... ”); id. § 21.3041 ("Not later than the 20th day after the date the party or the party’s representative receives notice of the commissioner’s decision ..., the party may file a request for rehearing.... A request for rehearing is not required for a party to appeal the commissioner's decision.... A request for rehearing is denied by operation of law if the commissioner does not issue an order before the 45th day after the date the party or the party's representative receives notice of the commissioner’s decision.”); id. § 21.305(b) ("Each party shall bear the cost of any copy of the transcript requested by that party.”); id. § 21.306 ("The commissioner and the staff of the agency may not communicate with any party or any party’s representative in connection with any issue of fact or law except on notice and opportunity for each party to participate.”); id. § 21.307(b)(1) ("An appeal under this section must be perfected not later than the 30th day after the date the party or the party’s representative receives notice of the commissioner's decision .... ”); id. § 21.307(c) ("The commissioner and each party to the appeal to the commissioner must be made a party to an appeal under this section.”). In all but one of these uses of "party,” the Commissioner is clearly excluded from its meaning. The single time that the Commissioner is included as a "party,” in § 21.307(c), does not change the Legislature’s general use of the term to refer to everyone involved in the proceeding except the Commissioner. See Brown v. Darden, 121 Tex. 495, 50 S.W.2d 261, 263 (1932) ("Whenever a legislature has used a word in a statute in one sense and with one meaning, and subsequently uses the same word in legislating on the same subject-matter, it will be understood as using it in the same sense, unless there be something in the context or the nature of things to indicate that it intended a different meaning thereby. The rule applies when the phrases are substantially the same.” (citation omitted)).

      . The Commissioner argues that the Legislature explicitly conditioned suit in Travis County on the consent of "all parties,” not "either party,” "both parties,” "the parties to the appeal to the Commissioner,” or other similar terms that would clearly exclude the Commissioner. But that contention ignores the possibility that more than two parties could be involved in the proceedings. For example, if a school district fired two teachers who then brought an appeal to the Commissioner, then the term "both parties” would not properly encompass two teachers and a school district. The language of subsection (a), when taken as a whole, indicates that "party” should have a consistent meaning, the change from singular to plural notwithstanding.

      . The Commissioner argues that one consenting party might not be aware of the disadvantage of an appeal in Travis County, thus requiring the Commissioner to withhold consent and steer the unwitting party away from an unfavorable panel or precedent. Even if true, the parties are in the best position to make their own strategic decisions.


author: PER CURIAM.

text:
    STATE of Missouri, Respondent, v. Cleophus KING, Appellant.
    No. ED 75257.
    Missouri Court of Appeals, Eastern District, Division Four.
    Jan. 11, 2000.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Oct. 4, 2000.
    Application for Transfer Denied Dec. 5, 2000.
    Raymund J. Capelovitch, Asst. Public Defender, St. Louis, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Gregory L. Barnes, Asst. Atty. Gen., Jefferson City, for respondent.
    Before WILLIAM H. CRANDALL, Jr., P.J., KENT E. KAROHL, J. and MARY K. HOFF, J.
   ORDER

PER CURIAM.

Cleophus King (appellant) appeals convictions of felonious restraint, pursuant to Section 565.120 RSMo (1994), and armed criminal action, pursuant to Section 571.015 RSMo (1994). We have reviewed the record on appeal and the briefs of the parties. The evidence, particularly the victim’s testimony, supports the findings of the jury and the judgment. There is no evidence to support a finding that the sentence is manifestly unjust or that a miscarriage of justice results from it. Thus, there is no plain error. An extended opinion would have no jurisprudential value. We affirm the judgment pursuant to Rule 30.25(b).


author: ROBERT G. ULRICH, J.

text:
    AMERICAN FAMILY MUTUAL INSURANCE COMPANY, Appellant, v. Erik BRAMLETT, a Minor, by and Through his Father and Next Friend David BRAMLETT, David Bramlett, Individually, Respondents, Kenneth and Elizabeth Cole, Defendants, Montgomery Ward and Co., Inc., Respondent.
    No. WD 56602.
    Missouri Court of Appeals, Western District.
    June 6, 2000.
    Motion For Rehearing and/or Transfer to Supreme Court Denied Oct. 3, 2000.
    Application for Transfer Denied Dec. 5, 2000.

      Rodney Allen Ames, Kansas City, for appellant.
    Donald W. Vasos, Shawnee, for respondents.
    Jon M. Krebbs, Liberty, for defendants.
    Karen William, James Foland, Jr., for respondent.
    Before HOWARD, P.J., ULRICH and SMART, JJ.
   ROBERT G. ULRICH, J.

American Family Insurance Company (American Family) filed a declaratory judgment action seeking judgment that it was not liable for injuries sustained by Erik Bramlett under a homeowner’s insurance policy issued by American Family to Kenneth and Elizabeth Cole. Final judgment was rendered against American Family. In its sole point on appeal, American Family contends the trial court erred in finding that the Coles’ homeowner’s policy afforded liability coverage for injuries sustained by Erik Bramlett because coverage was excluded under the business pursuits exclusion of the policy. The judgment of the trial court is affirmed.

This appeal arises out of a declaratory judgment action in which American Family sought judgment declaring that it is not required to indemnify Kenneth and Elizabeth Cole under the homeowner’s insurance policy issued by American Family to the Coles for injuries sustained by Erik Bramlett, a minor, while he was on the Coles’ property. The stipulated facts acknowledged that Erik was injured on the Coles’ property while he was under the care and supervision of Elizabeth Cole.

The parties stipulated before the trial court that Elizabeth Cole regularly provided home day care services for Erik Bram-lett and that at the time of the accident that caused Erik’s injuries, Erik was utilizing Mrs. Cole’s services as a day care provider. Mrs. Cole received compensation from Erik Bramlett’s parents in exchange for her day care services. The parties agreed that the home day care service provided by Mrs. Cole was a business pursuit under the terms of the insurance policy.

While under the care of Mrs. Cole on March 16, 1995, Erik sustained injuries to his foot when he came into contact with a lawnmower being operated by Mrs. Cole’s husband, Kenneth Cole. At the time of the accident, both Mr. and Mrs. Cole were named insureds under the homeowner’s policy, and the policy was in full force and effect. Mr. Cole was not paid by any person for mowing the lawn of his residence before, during or after the accident, and his decision to mow the lawn was not related to or in any way predicated upon the fact of Erik’s presence. The parties acknowledged that Mrs. Cole was exclusively in charge of caring for Erik, but in the Bramletts’ underlying suit against Mr. Cole, the Bramletts did not allege either that Mrs. Cole was negligent in supervising Erik or that her conduct or inattention caused the injuries suffered by Erik.

The homeowner’s policy contained the following coverage exclusion and exception: “We will not cover bodily injury or property damage arising out of business pursuits ... except ... [for] activities which are normally considered non-business .... ” The policy defined the term “business” to mean “any profit motivated full or part-time employment ... or occupation and including the use of any part of any premises for such purposes. The providing of home day care services to other than insureds, for which an insured receives monetary or other compensation for such services is also a business.”

American Family contended that under the business pursuits exclusion set forth in the policy, it was not obligated to provide liability coverage for the injuries sustained by Erik Bramlett because the injuries arose out of Mrs. Cole’s day care business. Defendants argued that coverage should be extended for Erik’s injuries based upon the non-business exception to the exclusion that is provided in the policy because Mr. Cole’s act of mowing the lawn was not for profit, was in no way related to Mrs. Cole’s day care business, and was normally considered a non-business activity.

The court entered its Final Judgment and Order in favor of Defendants on October 13, 1998, finding that the non-business exception to the business pursuits exclusion applied to afford the Coles liability coverage for Erik’s injuries. This appeal followed.

In its sole point on appeal, American Family contends the trial court erred in finding that the Coles’ homeowner’s policy provides liability coverage for the injuries sustained by Erik Bramlett because coverage was excepted under the business pursuits exclusion set forth in the policy.

Because the instant case was submitted to the trial court on a stipulation of uncontroverted facts, the determination of the trial court is considered a judgment on the merits. Cappo v. Allstate Life Ins. Co., 809 S.W.2d 181, 132-133 (Mo.App.W.D.1991). As such, the decision of the trial court will be affirmed on appeal unless no substantial evidence supports it, it is against the weight of the evidence, it erroneously declares the law, or it erroneously applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976).

The interpretation of the meaning of an insurance policy is a question of law. Wood v. Safeco Ins. Co. of America, 980 S.W.2d 43, 48 (Mo.App. E.D.1998). When reviewing an insurance policy, the policy is given a reasonable construction and interpreted so as to afford rather than defeat coverage. Farm Bureau Town & Country Ins. of Missouri v. Hilderbrand, 926 S.W.2d 944, 947 (Mo.App. W.D.1996). Policy provisions designed to restrict, limit or impose exceptions or exemptions on insurance coverage are strictly construed against the insurer. Id.

Where an insurance company seeks to avoid coverage under a policy exclusion, the insurer has the burden of proving the applicability of the exclusion. State Farm Fire & Cas. Co. v. D.T.S., 867 S.W.2d 642, 644 (Mo.App. E.D.1993) (citing Truck Ins. Exchange v. Heman, 800 S.W.2d 2, 4 (Mo.App. W.D.1990)). Because American Family was seeking to deny coverage under the business pursuits exclusion within the homeowner’s policy, it had the burden of proving that the activity that caused Eric’s injury arose out of a business pursuit and that such activity was not normally considered non-business. If the activity that caused the injury was normally considered non-business, the business pursuits exclusion was negated, and American Family was obligated to indemnify the policy holder to the limits of the policy for the damages sustained by Erik as a result of the incident.

The policy in the instant case defined a business as either full or part-time employment that is profit motivated or the use of any part of any premises for such purposes. The policy specifically stated that home day care services for which an insured receives monetary or other compensation is a business as defined by the policy. The policy did not, however, define what activities are considered non-business activities.

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. Krombach v. Mayflower Ins. Co., Ltd., 785 S.W.2d 728, 731 (Mo.App. E.D.1990). The words utilized in an insurance policy are given their plain meaning. Id. Analysis of the exclusion clause and the exception to it reflects that the policy language excludes from coverage the business of operating a day care center. Injury resulting from the operation of a day care service operated for money or other compensation, therefore, is not covered under the policy. The exception is that if injury results from an incident unrelated to the day care business.

The business of the day care facility in this case was to provide supervision of the children attending. Thus, injury to a child attending the day care business that resulted from a failure of the business to properly supervise the child was not covered by the American Family homeowner’s policy. Injury to a child attending the day care business that was not caused by the failure of the business to properly supervise the child was covered by the policy. For example, if a child, present to benefit from the day care business for which compensation is provided and under the supervision of the day care provider, were injured because of a previously unknown defect in the structure of the building in which the day care business operated, the policy would cover the incident because the injury was not the result of the failure of the day care provider to supervise the child.

This analysis is consistent with the several Missouri cases that have addressed the non-business activity exception to the business pursuits exclusion in the context of a home day care facility. See, eg., American Family Mut. Ins. Co. v. Moore, 912 S.W.2d 531 (Mo.App. W.D.1995); Maryland Cas. Co. v. Hayes, 827 S.W.2d 275 (Mo.App. E.D.1992); Safeco Ins. Co. v. Howard, 782 S.W.2d 658 (Mo.App. E.D.1989). In American Family Mutual Insurance Company v. Moore, a child in the care of Marsha Moore for which compensation was paid was bitten by a dog owned by Ms. Moore’s husband and son. Moore, 912 S.W.2d at 532. Ms. Moore and her husband were insured by a homeowner’s policy issued by American Family. Id. American Family filed a declaratory judgment action seeking to establish that the business pursuits exclusion was applicable. Id. Summary judgment was entered in American Family’s favor. Id. On appeal, the Moores argued that because Ms. Moore’s husband and son were not engaged in a business pursuit in their ownership of the dog, the non-business pursuits exception applied to provide coverage. Id. at 535.

Evidence was introduced in the case regarding the dog’s vicious character and the tendency of Ms. Moore to allow the dog in proximity to the day care children. Id. at 535-536. The court found, relying on such evidence, that because the dog was taught to engage in prey behavior and to be aggressive and dominant, it had dangerous propensities with a tendency to injure people. Id. at 535. The court held that although owning or harboring a dog may be an activity that is usually incident to a non-business pursuit, because Ms. Moore introduced a dog with vicious propensities into the day-care environment in close proximity to small children who were on the premises pursuant to a business pursuit, the ownership of the dog under the circumstances was not an activity within the definition of the non-business pursuits exception. Id. at 536.

In Maryland Casualty Company v. Hayes, Helen Hayes provided babysitting services for compensation to the Hills’ two children. Hayes, 827 S.W.2d at 276. While Ms. Hayes was in the kitchen preparing tea for herself and oatmeal for one of the children, she spilled boiling tea water on the other child, who was playing on the floor. Id. Maryland Casualty filed a petition for declaratory judgment to determine the question of coverage under a homeowner’s policy it issued to Ms. Hayes. Id. at 275. Ms. Hayes’ homeowner’s policy contained the standard business pursuits exclusion and the exception for non-business activities. Id. at 276. The trial court ruled that there was no coverage under the policy because Ms. Hayes’ activities were not activities which were usual to non-business pursuits. Id. In affirming the trial court’s judgment, the Eastern District found that although the preparation of one’s own lunch is generally considered a non-business activity, the business pursuits exclusion applied and the exception to the exclusion did not in this case because the preparation of lunch was contemplated by the parties as part of Ms. Hayes’ day care services. Id. at 278. Ms. Hayes allowed the children to be in the vicinity of her pouring hot water, and the resulting injuries involved both her failure to supervise the child by keeping her out of danger and her preparation of food for the child as a part of the day care business. Id.

In Safeco Insurance Company v. Howard, Janet Howard operated a babysitting service for compensation within her home. Howard, 782 S.W.2d at 658. Her teenage son, who lived with her in the home, was convicted of molesting several of the young children under Ms. Howard’s care, and the parents of the children sued Ms. Howard for her failure to properly supervise her son in the presence of the children. Id. at 658-659. Safeco filed a declaratory judgment action claiming the homeowner’s policy issued to Ms. Howard did not cover the negligence claim. Id. at 659. Safeco’s policy also excluded bodily injury arising out of business pursuits except for activities that were ordinarily incident to non-business pursuits. Id. The trial court found coverage. Id. at 658. On appeal, the Eastern District held that the activity that caused the injury to the children was Ms. Howard’s failure to supervise her son around the children, ordinarily incident to the day care business and not ordinarily incident to non-business pursuits. Id. at 659-660.

In each of these three cases, specific evidence was offered to show that under the circumstances, an activity that generally would be considered non-business (ownership of a dog or preparation of one’s lunch) constituted an activity incident to a business pursuit because the activity was related to the failure of the day care provider, in the business of providing day care services, to properly supervise the child attending the day care facility. The underlying tenet in Moore, Hayes, and Howard was that the business of day care for profit enterprises is supervision of children, and the condition causing injury in these cases, while generally considered a non-business activity, was introduced by the failure of the day care provider to adequately supervise the children attending the day care business. Thus, in this case, if the injury to Erik Bramlett ultimately arose out of Mrs. Cole’s failure to properly supervise Erik, the injury was not covered by the American Family homeowner’s policy.

American Family failed, however, to meet its burden of proving that the business pursuits exclusion of the policy applied. Because American Family was seeking to deny coverage under the policy, it had the burden of proving that the activity that caused Erik’s injury arose out of a business pursuit and that such activity was not normally considered non-business. While the uncontroverted facts stipulated by the parties showed that Erik was injured while being provided home day care services by Mrs. Cole when he came into contact with the lawn mower being operated by Mr. Cole, the stipulated facts were silent on the issue of whether Erik’s injuries were caused by Mrs. Cole’s failure to properly supervise the child. In fact, the parties stipulated that American Family did not even allege in its petition for declaratory judgment that Mrs. Cole was in any way negligent or otherwise caused Erik’s injuries. American Family had the burden of proving that Mr. Cole’s mowing the lawn, an activity that generally may be considered non-business, constituted an activity incident to a business pursuit because it related to the failure of Mrs. Cole to properly supervise the child in the course of her business of providing day care services to Erik. American Family did not meet this burden. Therefore, the judgment is affirmed.

HOWARD, P.J. and SMART, J. concur.

      . In the underlying case, Eric and David Bramlett sued Mr. Cole and not Mrs. Cole, attempting to avoid the exclusion clause because it expresses the intent to deny coverage when damage results from day care services provided as a business. Mrs. Cole and not Mr. Cole operated the business. By suing Mr. Cole only, the plaintiffs attempted to sever the insureds, thereby focusing only on Mr. Cole’s use of the lawn mower, a non-business activity, as the cause of Erik’s injury. The exclusion clause, however, unambiguously expresses the intention to exclude from coverage all insureds when damage results from the business pursuit of operating a day care business on the premises. Moore, 912 S.W.2d at 534. Mrs. Cole’s failure to supervise, therefore, cannot be avoided as a legal issue where that failure is the cause of Erik's injury even though Mrs. Cole is not a named party to the suit, and where, as here, the policy under which recovery is sought listed both Mr. And Mrs. Cole as insureds and contained a business pursuits exclusion clause.