Tenn. Code Ann. §20-1-119 and Federal Courts

The federal courts have misconstrued Tenn. Code Ann. § 20-1-119 (2009) for almost two decades. The Tennessee Supreme Court finally got an opportunity to set the record straight, and it did so in Becker v. Ford Motor Co.[1]

Section 20-1-119 is one of the most rational, balanced tort-related statutes in the Tennessee Code. In brief, and subject to several important exceptions, it provides that if a defendant in an answer or amended answer alleges the fault of a person not a party to the action, the plaintiff may add the non-party as a party defendant within 90 days and avoid any statute of limitations defense asserted by the new defendant. It provides a way for all potentially at-fault parties to be brought before the court in a state that has the shortest statute of limitations in the country. It discourages shotgun complaints, reducing litigation expense for defendants and plaintiffs alike. The bottom line: Tenn. Code Ann. § 20-1-119 works.[2]

One issue that raised its head in the early days of § 20-1-119 was whether a plaintiff could use the 90-day window for adding a party defendant otherwise protected by the expiration of the statute of limitations if the plaintiff knew or should have known about the existence of the party within the statute of limitations. The potential defendants of the world said “No,” arguing the policy behind statutes of limitations generally. The potential plaintiffs of the world said “Yes,” arguing inter alia the plain language of the statute did not so limit its application.

The United States Court of Appeals for the Sixth Circuit got first crack at this legal issue in Whittlsey v. Cole.[3] For unknown reasons, it elected not to certify the question to the Tennessee Supreme Court and ruled the statute “was not intended to apply to a plaintiff … who, long before the defendant’s answer to the complaint, had knowledge that a third party be at fault for the complained of injuries.”[4] When the issue was first raised in state court, the Western Section[5] of our court of appeals followed Whittlesey. The Middle Section rejected Whittlesey in Townes v. Sunbeam Oster Co.[6] The Tennessee Supreme Court denied a Tenn. R. App. P. 11 application in Townes and recommended that the Court of Appeals opinion be published. The publication of the opinion made the Middle Section case controlling authority under Tennessee Supreme Court Rule 4(H)(2).[7] The Western Section of the Court of Appeals appropriately changed its view on the issue and followed Townes.[8]

Controversy closed, right? Nope. The federal courts continued to ignore unambiguous Tennessee law.[9] This incongruity persisted for 13 years and 32 days, until March 7, 2014, when the Tennessee Supreme Court ruled in a case it accepted on a certified question of law[10] that it meant what it said in 2001 when it ordered publication of the Middle Section Court of Appeals opinion in Townes.

Now, the law in federal court and state court should be the same: §20-1-119 applies “even when the plaintiff knew of the identity of the potential tortfeasor[11] at the time of the filing of the plaintiff’s original complaint but chose not to sue the potential tortfeasor.” Presumably, this opinion will not be ignored by the federal courts.

Notes

  1. Becker v. Ford Motor Co., No. M2013-02546-SC-R23-CV, ___ S.W.3d ___, 2014 WL 901510 (Tenn. March 7, 2014).
  2. For an extensive discussion of the law concerning this statute, consult chapter 5 of  17 John A. Day, et al., Tennessee Practice Series Tennessee Law of Comparative Fault (2013 ed.).
  3. Whittlsey v. Cole, 142 F.3d 340 (6th Cir. 1998).
  4. Id. at 345. The reader is encouraged to study this opinion and endeavor to understand (a) how legislative intent was relevant given the language of the statute; and (b) how the court of appeals was able to ascertain what the legislative intent was. The court admitted its conclusion was not based on legislative history.  Id.
  5. Lipscomb v. Doe, 1998 WL 886601 (Tenn. Ct. App. Dec. 16, 1998) (rev’d on other grounds, 32 S.W.3d 840 (Tenn. 2000).
  6. Townes v. Sunbeam Oster Co.,50 S.W.3d 446, 452-53 (Tenn. Ct. App. 2001).
  7. This rule is currently Rule 4(G)(2). The rule permits federal courts to certify questions of state law to the Tennessee Supreme Court when “there is no controlling precedent in the decisions of the Supreme Court of Tennessee.”
  8. McClendon v. Bunick, 2001 WL 1660845 (Tenn. Ct. App. Dec. 28, 2001).
  9. See, e.g., Schultz v. Davis, 495 F.3d 289, 294-95 (6th Cir. 2007) (the opinion references but ignores the holding Townes).
  10. Magistrate Judge Susan K. Lee of the Eastern District of Tennessee is to be congratulated for recognizing  the inconsistency between federal law and state law on this state-law issue and certifying this issue to the Tennessee Supreme Court under Tenn. Sup. Ct. R. 23.
  11. 2014 WL 901510 at *7.
     

John Day JOHN A. DAY is a trial lawyer in Brentwood. He has been irritated about Whittlesey since 1998. Now, his list of things and people that irritate him is down to 4,374 items. His wife Joy is not on that list.