Where a defendant adds an affirmative defense asserting comparative fault against a non-party more than two years after the complaint was originally filed, such assertion may be appropriate and timely if the defendant was diligent in obtaining information about the potential tortfeasor.
In Santore v. Stevenson, No. W2017-01098-COA-R3-CV (Tenn. Ct. App. Feb. 20, 2018), plaintiff was injured when he was hit by a vehicle at a truck stop. Plaintiff filed suit against Cordova Concrete, Inc. and its employee (Cordova) on July 8, 2014. At some later point, Cordova learned that a 911 call had been made from the accident scene, and it sent a subpoena to the City of Memphis to obtain a recording of the call. When the city did not respond, Cordova sent a public records request, and thereafter received an audio file of the call and a Background Event Chronology.
Cordova found a number listed in the chronology and called it multiple times, finally identifying the 911-caller as a truck driver. Cordova arranged to depose the truck driver on August 29, 2016, and during that deposition the caller stated that an Averitt truck hit plaintiff. Based on this information, on September 20, 2016, Cordova filed a motion to amend its answer and assert an affirmative defense of comparative fault against Averitt and its unknown driver. This filing came “more than two years after the complaint was filed but less than three months after obtaining the public records from the City of Memphis.” Cordova and plaintiff agreed to allow the amendment, and plaintiff then amended the complaint to add Averitt and the unknown driver as defendants.