If a plaintiff originally names a defendant then later voluntarily dismisses that defendant, the plaintiff may be able to re-name the defendant in an amended complaint pursuant to Tenn. Code Ann. § 20-1-119 after another defendant asserts comparative fault against the previously nonsuited defendant. This result may not be affected by the fact that the same defendant was named as a potential comparative tortfeasor in the answer to the original complaint.
In Scales v. H.G. Hill Realty Co., LLC, No. M2017-00906-R3-CV (Tenn. Ct. App. Jan. 30, 2018), plaintiff fell in a grocery store on February 19, 2014. She filed suit against four entities that owned or operated the store on December 4, 2014 for various negligence and premises liability claims. The defendants included two entities related to Publix (the Publix defendants) and two related to the owners of the property (the Hill defendants). The Publix defendants filed an answer on January 8, 2015, in which they asserted as an affirmative defense the comparative fault of the Hill defendants.
After serving discovery requests on plaintiff, the Hill defendants filed a motion to compel. Plaintiff subsequently voluntarily dismissed the Hill defendants, with an order of dismissal without prejudice being entered on May 29, 2015.