Prior Suit Pending Doctrine

The Tennessee Supreme Court has released an opinion that settles (and changes) the law on the "prior suit pending" doctrine.  The issue rises infrequently in tort cases, but is still worthy of note.

In Tennessee a worker’s compensation lawsuit cannot be filed until after a benefit review conference (BRC) does not result in resolution of the case.  Either the employer or the employee may file a worker’s compensation complaint.  When the employee and employer reside in two different judicial circuits and one or both lawyers perceive that one forum is more favorable than the other there is a literal race to see who can file first where after an unsuccessful BRC.  If both file on the same day which action is permitted to proceed?

The Court said that "a lawsuit becomes “pending” when the complaint is filed. Although the filing of the complaint initiates the pendency of the case, a subsequent case will be subject to dismissal under the prior suit pending doctrine only if the court in the prior case has acquired personal jurisdiction over the parties." 

Footnote 5 of the opinion sets forth some other aspects of the prior suit pending doctrine not applicable to the cases before the Court:  "In addition to those requirements set forth in Cockburn, [as described in the preceding paragraph], we have recognized at least two other limitations on 5 the applicability of the prior suit pending doctrine. We have held that the prior suit pending doctrine is inapplicable when the prior lawsuit has been dismissed or discontinued. Walker v. Vandiver, 181 S.W. 310, 311 (Tenn. 1915). In other words, the prior lawsuit must continue to be “pending” in order for a subsequent lawsuit to warrant dismissal. See id. We have also held that the doctrine is inapplicable when the prior lawsuit was brought in a federal court or in the court of a foreign state. Hubbs v. Nichols, 298 S.W.2d 801, 802-03 (Tenn. 1956). There is, however, an exception to this latter rule. In cases involving in rem or quasi in rem jurisdiction, a prior suit pending in a federal court or in the court f another state will prevent a party from bringing a second lawsuit in Tennessee. Id. at 803."

Finally, it is obvious that the Court does not like the idea of lawyers racing to the courthouse to secure what they perceive to be a more favorable judge.  The Court said that the  "process of racing to the courthouse unseemly. It reflects attorneys’ lack of confidence in the judiciary of this state to apply the Workers’ Compensation Law in an evenhanded manner and demonstrates that lack of confidence to clients and the public at large. Furthermore, this process engages attorneys in the undignified spectacle of literally racing to secure perceived procedural advantages. Such gamesmanship does little to improve the image of attorneys in the eyes of the public. Indeed, at oral argument, counsel for the parties indicated that they do not relish participating in this practice."

Read the opinion in West v. Vought Aircraft Industries, Inc., No. M2007-01904-SC-R9-WC,  here.