Can a Plaintiff Sue Tortfeasor Outside of Statute of Limitations (Under T.C.A. § 20-1-119) When Defendant Asserts Comparative Fault Against Previously Known Tortfeasor?

Analysis:  On March 7, 2014, the Tennessee Supreme Court settled, once and for all, an important question about the comparative fault doctrine in Tennessee.  In sum, the fact a tortfeasor is known to the plaintiff at the time of the filing of the original complaint does not prevent them from bringing them in as a party at a later date (after the statute of limitations runs) when a defendant asserts comparative fault against them. 

The case at issue involved a Rule 23 certified question of law from the United States District Court for the Eastern District of Tennessee to the Tennessee Supreme Court.  In Michael S. Becker v. Ford Motor Co., No. M2013-02546-SC-R23-CV, 2014 WL 901510 (Tenn. 2014) the Tennessee Supreme Court made a clear ruling on an important comparative fault issue that has been in some dispute since McIntyre v. Ballentine, 833 S.W.2d 52 (Tenn. 1992).  In the Becker case, the plaintiff sued Ford Motor Company for products liability and breach of warranty claims following an accident.  The plaintiff did not sue the driver of the vehicle in the original complaint (who happened to be the plaintiff’s own son).  Ford answered the complaint and asserted comparative fault against the driver of the vehicle (the plaintiff’s son).  The plaintiff then filed a motion to add the son as a party and Ford opposed the motion on the grounds that the plaintiff could not use T.C.A. § 20-1-119 to bring in the son as a party because the plaintiff knew the identity of their son as a tortfeasor prior to filing the complaint. 

As a result of this issue, the Federal court certified the following issue of law to the Tennessee Supreme Court:

When a plaintiff knows the identity of a potential tortfeasor at the time of the filing of plaintiff's original complaint and prior to the running of the applicable statute of limitations and the plaintiff chooses not to sue said known potential tortfeasor, can the plaintiff then later rely on the 90–day savings provision of Tenn. Code Ann. § 20–1–119 in order to add the previously known potential tortfeasor to the existing lawsuit after the defendant alleges comparative fault against the known potential tortfeasor notwithstanding the expiration of the statute of limitations?

The Tennessee Supreme Court first addressed several different federal decisions that misinterpreted or ignored Tennessee law on comparative fault.  Ultimately, the Tennessee Supreme Court held that a plaintiff’s “ability to utilize Tenn. Code Ann. § 20–1–119 to amend its complaint to assert a claim against a non-party against whom a defendant has asserted a comparative fault claim or to file a separate new complaint against such a non-party does not depend on whether the non-party was either known or unknown to the plaintiff when its original complaint was filed.”  Id. at 6.  The Court then provided the formal response to the certified question of law from the Federal Court as follows:

A plaintiff may rely on the ninety-day savings provision in Tenn. Code Ann. § 20–1–119 in order to add a previously known potential non-party tortfeasor to an existing lawsuit even when the plaintiff knew the identity of the potential tortfeasor at the time of the filing of the plaintiff's original complaint but chose not to sue the potential tortfeasor

This is an important Tennessee Supreme Court decision that provides a definitive answer to this question that has caused some divergent court decisions.  Essentially, there is no longer any argument that can be made against a plaintiff who adds a non-party outside the statute of limitations under T.C.A. § 20-1-119 on the basis the plaintiff knew of the identity of the tortfeasor but did not add them as a party.  Because it may be helpful to some to have all of the language of T.C.A. § 20-1-119, I will provide it here as follows: 

(a) In civil actions where comparative fault is or becomes an issue, if a defendant named in an original complaint initiating a suit filed within the applicable statute of limitations, or named in an amended complaint filed within the applicable statute of limitations, alleges in an answer or amended answer to the original or amended complaint that a person not a party to the suit caused or contributed to the injury or damage for which the plaintiff seeks recovery, and if the plaintiff's cause or causes of action against that person would be barred by any applicable statute of limitations but for the operation of this section, the plaintiff may, within ninety (90) days of the filing of the first answer or first amended answer alleging that person's fault, either:

(1) Amend the complaint to add the person as a defendant pursuant to Tenn. R. Civ. P. 15 and cause process to be issued for that person; or

(2) Institute a separate action against that person by filing a summons and complaint. If the plaintiff elects to proceed under this section by filing a separate action, the complaint so filed shall not be considered an original complaint initiating the suit or an amended complaint for purposes of this subsection (a).

(b) A cause of action brought within ninety (90) days pursuant to subsection (a) shall not be barred by any statute of limitations. This section shall not extend any applicable statute of repose, nor shall this section permit the plaintiff to maintain an action against a person when such an action is barred by an applicable statute of repose.

(c) This section shall neither shorten nor lengthen the applicable statute of limitations for any cause of action, other than as provided in subsection (a).

(d) Subsections (a) and (b) shall not apply to any civil action commenced pursuant to § 28-1-105, except an action originally commenced in general sessions court and subsequently recommenced in circuit or chancery court.

(e) This section shall not limit the right of any defendant to allege in an answer or amended answer that a person not a party to the suit caused or contributed to the injury for which the plaintiff seeks recovery.

(f) As used in this section, “person” means any individual or legal entity.

(g) Notwithstanding any law to the contrary, this section applies to suits involving governmental entities.

Tennessee courts are sure to decide more and more cases on this statute and on Comparative Fault in Tennessee.  This doctrine has generated a significant amount of appellate case law because of the complexity of the concept in so many situations.