Day on Torts
When a plaintiff takes a voluntary nonsuit in a case asserting vicarious liability against an employer for its employee’s negligence, that plaintiff can re-file pursuant to the savings statute, even if the employee was voluntarily dismissed from the first case.
In Helyukh v. Buddy Head Livestock & Trucking, Inc., No. M2019-02301-COA-R9-CV (Tenn. Ct. App. Aug. 28, 2020), plaintiff was a long-distance truck driver who was injured when he collided with a tractor-trailer that was overturned on the interstate and had been driven by Michael Heller, an employee of defendant. Plaintiff initially sued both Heller and defendant within the one-year statute of limitations, making direct negligence claims against Heller and claims of vicarious liability against defendant. Plaintiff eventually voluntarily dismissed Heller from the case, and the trial court then granted summary judgment to defendant. On appeal, however, summary judgment was reversed, and shortly after remand, plaintiff nonsuited his claim against defendant.
Three months after the voluntary dismissal of defendant, plaintiff re-filed the case in a different county’s circuit court. Defendant moved for summary judgment, arguing that “it could no longer be held vicariously liable for Mr. Heller’s acts because Plaintiffs’ right of action against Mr. Heller was procedurally barred before Plaintiffs commenced the new action.” The trial court denied the motion but granted this interlocutory appeal, and the Court of Appeals affirmed denial.
Defendant’s argument was centered around the Tennessee Supreme Court opinion in Abshure v. Methodist Healthcare-Memphis Hospitals, 325 S.W.3d 98 (Tenn. 2010), wherein the Court “recognized several common-law exceptions to the general rule that a principal may be held vicariously liable for the negligent acts of its agent.” Defendant asserted that the Abshure ruling that “a plaintiff may not assert a vicarious liability claim when the plaintiff’s claim against the agent is procedurally barred by operation of law before the plaintiff asserts the vicarious liability claim against the principal” would apply here. Defendant argued that the savings statute did not operate to save this second suit, and that “the new action must stand or fall on its own” since it was filed after the statute of limitations had run against Mr. Heller, but the Court of Appeals disagreed.
The Court noted that even in Abshure, it was “recognized that joinder of the agent is unnecessary to hold the principal vicariously liable for the agent’s negligent acts,” and that “the extinguishment of the plaintiff’s claims against the agent, by voluntary dismissal or otherwise, merely produces the same effect as if the agent had never been sued.” (internal citations omitted). Applying that logic here, the Court ruled that plaintiff was entitled to use the savings statute to re-file his vicarious liability claim against defendant. The Court explained:
Here it is undisputed that Plaintiffs’ action was commenced within the limitations period, the voluntary dismissal of the Henderson County case did not conclude Plaintiffs’ right of action, and Plaintiffs commenced the new action in Wilson County within one year of the voluntary dismissal without prejudice. …Defendant cites no authority for the proposition that a plaintiff may not take advantage of the saving statute to re-file a vicarious liability claim if the plaintiff did not join the agent in the first action. Thus, we conclude that Plaintiffs’ voluntary dismissal of their claims against Mr. Heller in the first action produced the same effect as if Mr. Heller had never been sued.
After noting that “the savings statute is remedial and must be given a broad and liberal construction,” the Court of Appeals affirmed the trial court’s decision to deny summary judgment to defendant. (internal citation omitted). The Court ruled that plaintiff was entitled to re-file under the savings statute and that the case could proceed in the trial court.
Here, the Court of Appeals made clear that there is not a common law exception to the savings statute for vicarious liability cases. So long as the vicarious liability claims are initially asserted within the statutory limitation period, the savings statute should be available when the other requirements are met.
NOTE: This opinion was published approximately one and a half months after oral arguments were heard in this case.