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Brief Summary: T.C.A. § 20-1-119 provides a ninety day window for a plaintiff to add a new party into a lawsuit beyond the statute of limitations after a defendant (named in original or amended complaint that was filed within the statute of limitations) asserts comparative fault against that non-party.
Analysis: A recent Tennessee Court of Appeals decision discussed T.C.A. § 20-1-119 and the timeframe within which a party must be brought into a case after comparative fault is asserted (when the statute of limitations date has already passed). The Tennessee Court of Appeals decision of John Brockman v. Wesley Wolfe, No. W2011-02204-COA-R3-CV, 2012 WL 5364696 (Tenn. Ct. App. November 1, 2012) analyzed a plaintiff’s attempt to bring a party into a case greater then 90 days after a defendant asserted comparative fault against that non-party. In this case, the plaintiff filed suit alleging a date of injury of August 1, 2005. Brockman at 9. On September 9, 2008, a defendant asserted comparative fault against Wolfe Company, LLC (“Wolfe”). Brockman at 9. However, the plaintiff did not add Wolfe as a defendant until March 23, 2010. Brockman at 9.
As a result, Wolfe was not sued within the three year statute of limitations that applied to the cause of action. Brockman at 9. Additionally, Wolfe was not added as a defendant within ninety days from the date the defendant asserted comparative fault against Wolfe which occurred on September 9, 2008. T.C.A. § 20-1-119 provides a ninety day window for a plaintiff to bring suit against a party after comparative fault has been assessed against that party even if the statute of limitations has passed. The text of T.C.A. § 20-1-119 that is pertinent to this issue is 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.
(emphasis added). In the Brockman case, however, T.C.A. § 20-1-119 did not apply to save plaintiff’s cause of action against Wolfe and, therefore, the cause of action was time barred.
As a result, if comparative fault is asserted against a non-party and that entity is made a party by the plaintiff, it is important for defense counsel to analyze T.C.A. § 20-1-119 to ensure the statute was complied with properly. If it was not, then a motion to dismiss or a motion for summary judgment could be appropriate to dismiss the case for failure to comply with T.C.A. § 20-1-119.
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