Day on Torts
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.
Shortly thereafter, Averitt filed a motion to strike the comparative fault allegations and plaintiff’s amended complaint, which the trial court granted. The Court of Appeals, however, reversed, holding that striking the allegations against Averitt would be premature at this point in the litigation.
Averitt argued that the motion to strike should be granted because Cordova’s “identification of John Doe was so insufficient that Plaintiffs would not be able to plead or serve process on John Doe.” The trial court agreed, citing as precedent both Tenn. Code Ann. § 20-1-119 (the statute allowing plaintiff to add the comparative tortfeasor as a defendant) and the Tennessee Supreme Court opinion in Brown v. Wal-Mart Discount Cities, 12 S.W.3d 785 (Tenn. 2000). In Brown, the Supreme Court ruled that fault could not be attributed to a non-party who could not be identified:
[E]vidence of the existence of a phantom tortfeasor is not sufficient identification for purposes of pleading and serving process…Unless the nonparty is identified sufficiently to allow the plaintiff to plead and serve process on such person pursuant to Tenn. Code Ann. § 20-1-119, the trial court should not permit the attribution of fault to the nonparty.
In Brown, however, the alleged comparative tortfeasor remained unidentified throughout the litigation, including through the trial. Here, unlike in Brown, the Court of Appeals found that Cordova “was not afforded a reasonable opportunity to engage in pre-trial discovery to sufficiently identify John Doe.”
In its analysis, the Court emphasized the timeliness with which Cordova pursued information about the nonparty as soon as it learned of the 911 call. The Court noted that “in approximately four months, [Cordova] obtained a recording of the 911 call, identified and located the 911 caller, deposed him, discovered that Plaintiff was allegedly struck by an Averitt truck that was driven by an unknown driver, and filed its amended answer in which it attributed fault to Averitt and John Doe.” Despite the fact that a significant amount of time had passed since the complaint was filed, the time since the 911 call was obtained was relatively short. Accordingly, the Court ruled that “the trial court erred by striking [Cordova’s] affirmative defense of comparative fault and dismissing Plaintiff’s claims against John Doe and Averitt without affording [Cordova] a reasonable opportunity to conduct discovery concerning…the identity of John Doe.”
This was a well-reasoned analysis, with the Court focusing on delay from the time the potential third-party was discovered rather than simply focusing on the length of time since the initial complaint was filed. Plaintiffs and defendants who find themselves needing to add non-parties after a significant period of time should look to this case for guidance. I also note that Tenn. Code Ann. § 20-1-119 contains absolutely no deadline for the use of the statute to add additional parties to the litigation. Rather, the statute sets forth a blanket extension of the statute of limitations, subject only to the conditions and limitations of the statute.
That said, this is not a case which should be read as holding that an original defendant who fails to comply with the particularity required by Tenn. R. Civ. Pro. 8.03 in setting forth the affirmative defense of fault of a non-party should be granted time to do discovery to gather evidence as to the fault of the non-party and leave the affirmative defense in place. Why? Because plaintiff has only 90-days to decide whether to add the non-party, and plaintiff is entitled to the benefit of an appropriately pleaded answer before he or she makes the decision to add the non-party.
Thus, the impact of this decision on motions to strike insufficient allegations in an answer should be limited to the unique facts of this case. Ordinarily, a defendant should be granted a reasonable period of time to do discovery to identify additional parties to the case but should not be permitted to include in an answer an affirmative defense that does not comply with Tenn. R.Civ. Pro. 8.03.