To the three readers of this column who have not watched Breaking Bad, consider this your partial spoiler alert.

In Season 2 of AMC’s award-winning series, the Mario Batali of crystal meth, Walter White, breaks into the apartment of his partner-in-crime, Jesse Pinkman, and finds Jesse and his girlfriend Jayne Margolis in bed unconscious in a heroin-induced high. Walter inadvertently flips Jane on her back. She begins to aspirate and Walter makes the decision to allow Jane to suffocate to death. The consequence of this secret, impulsive decision predictably results in both men experiencing profound guilt.

It is likewise no surprise to anyone, even Walter, that when Jesse later learns of Walter’s decision, their already rocky relationship takes a severe, downward turn.

Nor is it surprising that Jane’s dad Donald suffers immensely as a result of Walt’s decision to let Jane die. Donald Margolis helped his daughter stay clean formore than a year before she met Jesse and her addiction once again trumped her ability to think of herself and others. The loss of his daughter was a severe body blow to his heart and soul.

But all of this is the stuff of typical writing and cinema. It is what else happens as a result of Walt’s decision that causes me goose bumps to this day. I will not spoil it for the three of you who have not seen the series, but disciples of the show know exactly of what I am writing. Suffice it to say, Walter’s decision is a tragic example of how ripples can result in a tidal wave.

What does this have to with Moreno v. City of Clarksville?[1] The facts of Moreno are simple enough and not nearly as provocative as those in Breaking Bad. Moreno was injured when a tree on State of Tennessee property fell on his car with him in it. As required by statute,[2] Moreno timely gave the state written notice of his claim shortly before the one-year anniversary of the incident. As is typical, the state did not act on the claim within the 90-day period provided by statute, which gave Moreno the right to pursue the claim by filing a traditional complaint before the Claims Commission.[3]

Sixteen months later, the state formally blamed the City of Clarksville for causing the tree to fall. Moreno then brought a claim against the City of Clarksville, invoking the provisions of Tenn. Code Ann. §20-1-119 to trump the one-year statute of limitations that would otherwise be applicable to a claim against the city.[4]

The city moved to dismiss Moreno’s complaint, arguing Moreno could not take advantage of Tenn. Code Ann. §20-1-119 because the statute requires the “original complaint” be filed within the statute of limitations as a condition precedent to triggering the 90-day window to avoid a statute of limitations defense. The city agreed Moreno filed his claim form on time but argued the formal complaint in the Claims Commission was filed outside of the one-year statute of limitations applicable to the city and thus Section 20-1-119 was not available to trump the city’s statute of limitation defense.[5]

The Tennessee Supreme Court agreed and ordered the claim against the city dismissed. A 4-1 majority of the court said it must “construe the language in Section 20-1-119 in a way that is natural, ordinary, and unforced” and the formal notice of a claim is not an “original complaint” with the meaning of Section 20-1-119.[6]

The immediate, predictable consequence of this decision is the state will now be able to assert fault against the city and, if it can prove that fault Moreno’s recovery will be reduced by the percentage of fault allocated to the city.

Another readily foreseeable consequence of the court’s decision is to effectively reduce the statute of limitations in tort cases against the state to about 265 days. Why? As indicated above, one who brings a tort action against the state must give notice and wait at least 90 days to file a complaint before the Claims Commission. If it is possible, the state will blame another person or entity (and that is almost always possible) and then the complaint must be filed well before Day 365 after the event to preserve the opportunity to bring suit against the non-party. Indeed, the notice of claim should be filed around Day 265 to allow the 90-day waiting period to expire (bringing us to Day 355) to give counsel 10 days to prepare and file an “original complaint” in the Claims Commission before the one-year statute of limitations expires on Day 365. It is beyond serious debate the court knew how its decision would impact the filing deadline in these cases.

It is also foreseeable that the court’s decision would cause “empty chairs” for those other than Moreno — chairs that would have been occupied by persons or entities blamed by the state but now cannot be sued because of how the phrase “original complaint” was interpreted. This adversely impacts plaintiffs who assume that there is no rush to see a lawyer to handle a claim against the state because they have a year within which to act, do not understand the financial impact of non-party allocations of fault, and /or do not appreciate the ability of the state’s lawyer to successfully blame a person or entity who is not at risk for having a judgment entered against it.

Likewise, one can easily predict claims against plaintiff’s lawyers as a result of this decision, especially lawyers who only occasionally work to the left of the “v.”

There is at least one other way Moreno will impact the future of litigation in this state that may not readily be seen by those reading this opinion.[7]

Can the reasonably prudent plaintiff’s lawyer ever advise a client to enter into a tolling agreement again?[8] Post-Moreno law now requires the original complaint be filed within the statute of limitations applicable to not only the defendant but also all future non-parties. Unless one can predict with a high degree of certainty the identity of potential non-parties and articulate the financial consequence of not suing them, the reasonable plaintiff’s lawyer will be very reticent to recommend that his or her client agree to enter into a tolling agreement without the potential non-parties becoming parties to the agreement. From a strategic standpoint, this opens a real can of worms — the potential plaintiff is basically identifying for a potential adversary others whom it might wish to blame in the future. I predict tolling agreements will largely become a thing of the past unless the facts are such that the risk of not suing non-parties to the tolling agreement is capable of being fully understood. This is particularly a problem in claims against lawyers and accountants, where tolling agreements are not uncommon, and will lead to more litigation that might well have been avoided.

Every decision (and every failure or refusal to decide) — from a court or otherwise — has consequences, some of which are readily foreseeable and some of which are not. Walter White did not intend to cause a tidal wave through Donald Margolis. But he did. And I doubt the court intended to increase litigation by causing a reduction in the use of tolling agreements in tort cases.

But it has.

Notes

1. 2015 WL 5526858 (Tenn. Sept. 18, 2015).
2. Tenn. Code Ann. §9-8-402(a)(1).
3. Tenn. Code Ann. §9-8-402 (c).
4. Section 20-1-119 provides a mechanism by which a plaintiff can add a non-party as a party defendant notwithstanding the expiration of the statute of limitations otherwise applicable to that defendant.
5. The trial judge agreed with the city and dismissed the complaint. The Court of Appeals reversed, saying “[w]e must look past form to substance. We have no difficulty finding that the notice of claim is the original complaint under Tenn. Code Ann. § 20-1-119.” 2014 WL 791935, *3 (Tenn. App. Feb. 25, 2014).
6. 2015 WL 5526858 at *10. Justice Gary Wade wrote a strong dissent on this point.
7. I have not read the briefs or listened to the oral arguments in this case and thus do not know if the court was made aware of these issues or not. And, obviously, I have no way to know whether members of the court or their clerks thought about this issue.
8. To be fair, many Tennessee plaintiff’s lawyers were concerned about the interaction between tolling agreements and Section 20-1-119 before Moreno.

JOHN A. DAY is a trial lawyer in Brentwood, Tenn. He is a fan of Breaking Bad and will never look at the eyeball of a teddy bear the same way again.