TCA Sec. 20-1-119 Applied to Save Case Against Previously Dismissed Defendant

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.

In August 2016, plaintiff filed an amended complaint against the Publix defendants. In its answer, Publix again asserted the comparative fault of the Hill defendants. Plaintiff then filed a second amended complaint, naming both the Publix and Hill defendants, and specifically stating that she was adding the Hill defendants pursuant to Tenn. Code Ann. § 20-1-119. The Hill defendants filed a motion to dismiss, arguing that the requirements of the statute were not met, and the trial court granted the motion. The Court of Appeals, however, reversed.

Tenn. Code Ann. §20-1-119 allows a plaintiff 90 days to add a party as a defendant that another defendant has named as a comparative tortfeasor.

A plain reading of the statute indicates that a plaintiff is permitted to assert a claim against a person not already a party to the complaint within 90 days if (1) a defendant is named in an original or amended complaint within the applicable statute of limitations, (2) that defendant alleges in an answer or amended answer that a person not a party to the suit caused or contributed to the injury at issue, and (3) the plaintiff’s cause(s) of action against that person would be barred by the applicable statute of limitations were it not for the statute. The 90-day period runs from the time the defendant alleges in the answer or amended answer that the person so described caused or contributed to the injury at issue.

The trial court interpreted the statute to mean that plaintiff had 90 days from May 29, 2015, the day that the Hill defendants were dismissed from the suit, to rename them in an amended complaint. The trial court relied on the original assertion of comparative fault against the Hill defendants, which was made while the Hill defendants were still parties to the suit. The Court of Appeals disagreed with this interpretation.

In its analysis, the Court pointed out that “a plaintiff’s knowledge of the existence of other persons who might be liable for the plaintiff’s injuries is irrelevant” to the operation of § 20-1-119. (internal citation omitted). Further, the Court noted that “a person not a party to the suit, as that phrase is used in the statute, includes any defendant previously dismissed from the lawsuit.” (internal citation and quotations omitted).

Applying the plain language of the statute to the facts of the case, the Court reasoned:

The first time Publix identified the Hill Defendants as tortfeasors when they were not parties to the suit and when the statute of limitations against them had run was when Publix filed its answer to [plaintiff’s] amended complaint on September 30, 2016. From this date, [plaintiff] had 90 days under the statute in which to file another complaint naming the Hill defendants as parties to the complaint. [Plaintiff] filed her second amended complaint on October 5, 2016, which was within this 90-day window. Thus, we hold that [plaintiff] satisfied the requirements of Tenn. Code Ann. § 20-1-119 and that the trial court erred by granting the Hill Defendants’ motion to dismiss the complaint.

(internal citation omitted).

The Court of Appeals has correctly interpreted and applied the statute in this case. It will be interesting to see whether this case is appealed to and taken up by the Tennessee Supreme Court.