What is Going On Here?

A decision released yesterday by the Court of Appeals confuses me greatly.  Defendant 1 blamed Nonparty in an answer.  Plaintiff sued Nonparty, who then became Defendant 2.  Defendant 2 moved to dismiss, saying  inter alia that the complaint against it was barred by the statute of repose.  Then, according to the opinion, Defendant 2 said that "argued that Tennessee’s  comparative fault joinder statute, which would operate to toll the three-year statute of repose, was  inapplicable in the current litigation."

Well, I sure hope that Defendant 2’s lawyers did not say that because that is not the law.  In fact, it is 180 degrees wrong. 

T.C.A. Sec. 20-1-119 has a dangerous subsection  and this is as good of time to talk about it as any.  Subsection  (b) of the statute says as follows: "A cause of action brought within ninety (90) days pursuant to subsection (a) shall not be barred by any statute of limitations. This section shall not extend any applicable statute of repose, nor shall this section permit the plaintiff to maintain an action against a person when such an action is barred by an applicable statute of repose." (Emphasis added).

This means that you have to force the hand of your opponents early in a case to determine whether or not they are going to name a nonparty who might be the beneficiary of a get-out-of-jail-free provided to them by our Legislature.  A defendant may attempt to wait until after the statute of repose expires against the nonparty and then blame the nonparty in an amended answer.  If the Court permits the amendment and fault is assessed against the nonparty the plaintiff will bear the economic result of any fault assessed against the nonparty.

This can usually be avoided through the use of discovery tools and scheduling orders.

Now, it is true that T.C.A. Sec. 20-1-119 was inapplicable to the case – the plaintiff did not timely file the first action.  But to suggest that 20-1-119 would have saved the claim against Defendant 2 if Defendant 1 had been sued on time is just plain wrong.

The case is Howard v. Kindred Nursing Centers Limited Partnership,  No. W2005-02360-COA-R3-CV (Tenn. Ct. App. W.S. August 2, 2006).