Think Ahead

‘Mills v. Fulmarque’ Reinforces Importance of Strategic Thinking in Tort Cases

Tenn. Code Ann. § 20-1-119 is one of the most important statutes for tort law practitioners in Tennessee. The statute, which defines the circumstances under which a plaintiff can add a party defendant to a tort case notwithstanding the expiration of the statute of limitations, plays a potential role in virtually any case in which comparative fault is an issue.

On Feb. 24, 2012, the statute was the subject of an opinion issued by the Tennessee Supreme Court which has significant implications for tort lawyers. The decision provides us with an opportunity to refresh our recollection about the statute and to examine how the new decision will impact the practice of tort law in Tennessee.

A Brief History of Tenn. Code Ann. §20-1-119

On May 4, 1992, the Tennessee Supreme Court released its opinion in McIntyre v. Ballentine[1] and adopted a modified comparative fault system. The unanimous opinion provided that plaintiffs who were less than 50 percent at fault for an event could recover damages from defendants who negligently contributed to cause a plaintiff’s injuries.[2]

The McIntyre opinion also eliminated joint and several liability of tortfeasors in most cases,[3] and allowed fact-finders to allocate fault to those who were not parties to the litigation.[4]

These latter holdings created much consternation in the plaintiff’s bar. The idea that a defendant could blame a non-party after the expiration of a one-year statute of limitations (the shortest such statute in the country) created a clear and present danger that plaintiffs would be trying cases where fault could be allocated to those blamed after the suit was filed, but who were protected from suit by the statute of limitations. Several liability required the economic consequence of fault allocation to non-parties to fall solely on the plaintiff.

The potential for unfairness created by McIntyre led to the passage of Tenn. Code Ann. § 20-1-119.

The Statute

Here is the statute in its current form.[5]

20-1-119. Comparative fault — Joinder of third party defendants.[6]

(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 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 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.

The purpose of the statute is to provide plaintiffs with an opportunity to add additional defendants to a case, notwithstanding the expiration of the statute of limitations. There are several important limitations on a plaintiff’s ability to use the statute.

Limitations on the Use of §20-1-119

First, the statute does not apply to a case commenced under the savings statute.[7] Thus, if a plaintiff takes a voluntary dismissal as permitted under Rule 41 of the Tennessee Rules of Civil Procedure, and re-files the case outside the original statute of limitations (but within the one-year period provided by the savings statute), and the defendant in the re-filed case asserts fault against a non-party to the case, the plaintiff will ordinarily not be permitted to add the non-party as a defendant in the re-filed action.[8]

Second, the statute does not preserve a case against a non-party who is protected by the statute of repose.[9] Tennessee has several statutes that eliminate, after a certain period of time, a cause of action against certain classes of persons and entities who receive protection from litigation simply because of their status. Under these statutes, a person can lose his or her right to assert a claim before he or she even knows they have a claim or, in fact, before he or she is even injured. Section 20-1-119 makes clear that it does not trump the protection offered to an alleged wrongdoer who is protected by a statute of repose. Several liability means that the cost of this legislative grant of immunity falls on the injured person or the decedent’s family.

Third, the federal courts in Tennessee have misconstrued the statute and therefore it offers relatively little protection for plaintiffs who have tort actions pending in federal court.[10] It is shocking that the federal case law interpreting the statute is such a poor reflection of the actual text of the statute, as well as the state cases interpreting it. It is equally shocking that no plaintiff has asked the federal courts to certify questions concerning the statute to the Tennessee Supreme Court,[11] which undoubtedly will fix the mess the first time it is presented with the opportunity to do so. In the meantime, however, plaintiffs in federal court rely on §20-1-119 at their peril.

These limitations aside,[12] the statute has done a remarkable job solving the potential for unfairness caused by a combination of a short statute of limitations, the abolition of joint and several liability, and the adoption of non-party fault allocations. However, one issue that has plagued the statute for almost 19 years is the question presented in Mills v. Fulmarque, namely whether the phrase “a defendant named … within the applicable statute of limitations” in Tenn. Code Ann. section 20-1-119(a) (2009) refers only to a defendant sued within the statute of limitations applicable to the plaintiff’s claim or also refers to defendants not sued within the statute of limitations applicable to the plaintiff’s claim, but added to the lawsuit during the ninety-day period provided by section 20-1-119(a).[13]

We now know the answer, and now Mills is yet another limitation on the use of §20-1-119.

Facts and Procedural History of Mills v. Fulmarque

In April of 2002, Mills was injured when he fell from a chair while making a business call at Allen Stone Box Company. Within the one-year statute of limitations applicable to personal injury claims, Mills sued two defendants. After the one-year statute of limitations expired, one of those defendants blamed another defendant, Aaron Rents Inc., the seller of the chair. Mills timely added Aaron Rents as a party defendant, using §20-1-119 to avoid a statute of limitations defense. Aaron Rents, in its answer, asserted the fault of Fulmarque Inc. Mills then sought permission to add Fulmarque as a party defendant.[14] Fulmarque was later granted summary judgment by the trial court,[15] persuading the court that the one-year statute of limitations had expired for a claim against it, and that §20-1-119 was not available to the plaintiff because Fulmarque was not blamed by an original defendant to the case, but only by Aaron Rents, a defendant joined after the original statute of limitations had expired.

The Court of Appeals reversed, finding that Mills could rely on §20-1-119 to avoid the statute of limitations defense raised by Fulmarque, notwithstanding the fact that Fulmarque was blamed by a defendant which was sued outside the original statute of limitations.[16]

The Tennessee Supreme Court’s Opinion

The Tennessee Supreme Court reversed the Court of Appeals and held that the plaintiffs did not have the right to add Fulmarque as a party defendant to the case under Tenn. Code Ann. § 20-1-119.

The following nicely summarizes the views of the parties on the issue:

Fulmarque contends that “applicable statute of limitations” refers exclusively to the statute of limitations for the plaintiff’s cause of action, which in this case is one year from the date of injury. Tenn. Code Ann. § 28-3-104(a)(1), (b)(1). Because Aaron Rents was not sued within the one-year statute of limitations for personal injury claims, Fulmarque argues that Aaron Rents’ answer alleging fault against it did not trigger section 20-1-119 and afford the Millses a second ninety-day period to add Fulmarque to the lawsuit.

In contrast, the Millses argue that, even though Aaron Rents was not sued within the one-year statute of limitations, its addition to the suit pursuant to the ninety-day period provided in section 20-1-119 means that Aaron Rents was sued within the “applicable statute of limitations.” As a result, the Millses contend that Aaron Rents’ answer alleging fault against Fulmarque again triggered section 20-1-119 and opened to them a second ninety-day period within which to file an amended complaint naming Fulmarque. The Millses argue that section 20-1-119, by use of the term “applicable statute of limitations,” refers to itself, in addition to the statute of limitations applicable to the plaintiff’s claim. Under the Millses’ interpretation of the statute, a defendant triggers a new ninety-day period for amending a complaint by alleging fault against a non-party, so long as that defendant has itself been “timely sued,” either within the statute of limitations applicable to the plaintiff’s cause of action or within the ninety-day period. According to the Millses, a plaintiff’s opportunity to add nonparties against which comparative fault has been alleged in a responsive pleading is never cut off, no matter how long the litigation continues.[17]

The court rejected the view held by the Millses, saying that [t]he phrase “applicable statute of limitations” refers exclusively to the statute of limitations for a plaintiff’s cause of action. Thus, the ninety-day period provided in section 20-1-119 is available to a plaintiff only when a defendant sued within the statute of limitations applicable to the plaintiff’s underlying cause of action “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….”[18]

Accordingly, the court held that section 20-1-119 provides a ninety-day window in which a plaintiff may name a new non-party as a defendant only if the defendant alleging comparative fault against the new non-party was sued within the statute of limitations applicable to the plaintiff’s cause of action.[19]

An Unanswered Question

What would have happened if one of the original defendants had also blamed Fulmarque? In other words, assume that one of the defendants sued within the statute of limitations also asserted fault against Fulmarque. Could the Millses have relied on that assertion of fault to defeat Aaron Rents’ statute of limitations defense?

In fact, that actually happened in this case. Of course, there is a little twist to the facts. An original defendant did assert fault against Fulmarque, but only after Aaron Rents blamed Fulmarque, and after Mills filed an amended complaint blaming Fulmarque. The trial judge ruled that Mills could not rely on the original defendant’s pleading, because §20-1-119 applies only when comparative fault is “alleged against a person not a party to the suit.”[20] Neither party challenged this ruling on appeal; thus the court said that it “expressly reserve[d] decision on the proper interpretation of this statutory language until the issue is squarely presented.”[21]

Nevertheless, these additional facts remind us of a way to avoid the problem addressed in Mills. A hypothetical will aid in understanding this issue. If plaintiff sues Defendant A within the statute of limitations, and, after the statute of limitations expires, A alleges the fault of nonparty B, plaintiff can add B as a party defendant and rely on §20-1-119 to avoid a statute of limitations defense. If Defendant B then blames non-party C, one entirely appropriate course of action would be for plaintiff to persuade A to promptly blame C. If A promptly blames C, and plaintiff sues C (preferably within 90 days of the time B blamed C)[22] then C would not be able to successfully assert a statute of limitations defense. Why? Because C was blamed by a party sued within the statute of limitations, and the fact that B also asserted fault against C is immaterial to the resolution of the statute of limitations issue, because A also blames C.

Using the above hypothetical in the context of the facts in Mills, A did get around to blaming C, but only after C was already sued by the plaintiff. Because the issue was not squarely before the court, we do not know if A’s “late” action would have helped plaintiff avoid the statute of limitations problem with C. It is clear, however, that had A blamed C in an amended answer before plaintiff sued C as a party defendant, plaintiff would have been able to maintain suit against C.[23]

The Practical Impact of the Court’s Ruling

The Mills decision has several implications for tort practitioners and their clients.

First, the unanswered question of whether Tenn. Code Ann. §20-1-119 permits the opening of a second 90-day window if a defendant not sued within the statute of limitations asserts fault against a non-party not blamed by any other defendant has now been answered. Thus, if a plaintiff is in this position, the best course of action is to try to persuade one or more of the original defendants sued within the statute of limitations to also assert fault against the non-party. If one of the original defendants cannot be persuaded to do so, the plaintiff will be forced to “defend” the non-party, taking reasonable steps to have the fact-finder allocate no or little fault against the non-party. The failure to do so will result in the plaintiff bearing the financial responsibility for the damages apportioned to the non-party.

Second, some plaintiff’s lawyers are concerned that the court’s interpretation of statute will permit defendants and potential defendants to essentially conspire to leave the plaintiff with an empty chair. How can this happen?

Let’s assume that plaintiff is injured in an event. A, B and C have some connection to the event, and although plaintiff knows of the existence of each of them, plaintiff’s investigation reveals that A is the only entity responsible for the event. Thus, plaintiff sues only Defendant A.

Assume further that Defendant A has a business relationship with B and C. Defendant A does not want to hurt B and C, but also does not want to bear full responsibility for an incident for which it believes that B and C share some fault.

What concerns some plaintiff’s lawyers is that Defendant A will name B as a non-party at fault after the one-year statute of limitations expires, with an understanding that, after plaintiff sues B, B will name C as a non-party at fault. Under the Mills decision, plaintiff will not be able to sue C because the fault of C was alleged by B, not A (the original defendant). Thus, A and B can work together to shift fault to C, knowing that because C is a non-party, the fault shifted to C is not going to work to its financial detriment (because no judgment can be entered against a non-party), and will help A and B (there being less fault assigned to them). Indeed, C may intentionally take a fall, or a partial fall, to help out B and A.

Is this a realistic possibility? Yes, although the As and Bs of the world are at risk in this scenario, and will thus end up weighing whether the risk of being “stuck” with fault that might otherwise be assigned by the factfinder to party C is offset by the potential benefit of laying off fault on non-party C. Whether and when this occurs depends on a myriad of factors, including the facts of the case, the nature of the relationship between A, B and C, the perceived sophistication of plaintiff’s counsel, and lots of other things. The risk of this occurring increases when one liability insurance company insures A, B and C (or even just B and C), as is often the case in health care liability actions against physicians.

So, how does the reasonably prudent plaintiff’s lawyer protect his or her client in a post-Mills world?

One approach is to sue everybody who might have had anything to do with the event giving rise to the injury. This would be unfortunate, in that it will result in lawsuits against those who are ultimately determined to have nothing to do with the incident. Indeed, one of the benefits to Tenn. Code Ann. §20-1-119 is that it reduced the likelihood of shotgun-style pleadings, because it provided a safety net to plaintiffs who did not sue — intentionally or otherwise — one or more people or entities that were later found to play a part in the event causing injury or death. The threat of Rule 11 sanctions exists with shotgun pleadings, but a judge would be hard-pressed to impose them, given the risk faced by a plaintiff who has operated with appropriate haste, but is still at risk for one or more empty chairs.

Note that, because of the certificate of good faith requirement, the shotgun approach is not readily available in health care liability actions.[24] This special protection to health care providers, coupled with the relationship that exists among this class of defendants and potential defendants, creates more risk for the plaintiff in a health care liability action.

A second approach for a plaintiff is to do a quick investigation, identify at-fault parties to the extent possible, sue them, take quick discovery of parties and non-parties to determine the potential liability of others, and then add those others as appropriate before the original one-year statute of limitations expires. From a practical standpoint, this will cause a plaintiff’s lawyer to (a) file suit within five or six months of the event; (b) refuse to extend the time period for filing an answer; (c) insist upon timely answers to written discovery that was served with the complaint; (d) initiate early third-party discovery; and (e) permit less accommodation of the schedules of others when setting depositions. It will also increase motion practice, as party defendants seek more time to answer complaints and respond to discovery, and non-parties seek to quash Rule 45 subpoenas and deposition notices.

There is another problem with this course of action: it is of no use if a plaintiff comes to a lawyer 9, 10 or 11 months after an event. Why? Because there simply is very little time to accomplish the discovery necessary to gain more information before the statute of limitations expires. Other problems include the costs attendant to increased motion practice and the price paid in decreased professional collegiality normally experienced in civil litigation in Tennessee. This approach will also require judges to enforce the deadlines called for in the rules, and order lawyers to give timely, complete answers to discovery, something that many judges are reluctant to do.

A third approach is a more moderate one, and it applies a combination of the strategies set forth above on a case-by-case basis. A premium will be placed on pre-suit investigation and informed judgments about who played a role in the event giving rise to an injury or death. Prompt discovery to identify others who may have played a role will still be required. Defense counsel should be prepared to give complete answers to discovery about the existence of other potential tortfeasors and their role in the event in question. Motions to compel answers to such interrogatories will become more common, and will occur more quickly. Early third-party discovery will have to be considered. Trial judges are going to be required to force recalcitrant parties to answer discovery fully and more promptly.

This strategy requires that plaintiff’s counsel not be dilatory in responding to discovery, because a common response to a motion to compel filed against a defendant is that “I’ve been trying to get ‘xyz’ information from the plaintiff for six months, and I need that information before I can give a complete response.” A plaintiff’s lawyer who lollygags on responding to discovery will be at a greater disadvantage after Mills than they are today.

Finally, we can expect to see much more litigation over the discovery rule than we have in the past 18 years. The adoption of Tenn. Code Ann. §20-1-119 has greatly reduced the need for litigation over the discovery rule. Indeed, many lawyers have forgotten the value of the discovery rule to plaintiffs, thinking of it only in medical malpractice cases.
To illustrate the use of the discovery rule in solving problems arising from §20-1-119 and the Mills case, assume the following facts. Plaintiff is injured in an event. Plaintiff knows that A and B were involved in the event, but there is no public evidence that C is involved, and plaintiff is otherwise unaware of C’s role in the event. Plaintiff, believing that A is solely at fault, sues only A within the statute of limitations. Defendant A blames B after the statute of limitations expires, and non-party B becomes Defendant B. Then, Defendant B blames non-party C. Plaintiff cannot sue C because of the Mills decision.[25]

Except perhaps she can. Recall that plaintiff did not know of the role of C in the event, and the facts of this hypothetical assume that there was no public or other evidence of C’s involvement. Under these facts, the reasonably prudent plaintiff’s lawyer will argue that the statute of limitations had not expired as to C because of the discovery rule.
The discovery rule applies to not just health care liability cases, but also to the vast majority of tort actions.[26] The Tennessee Supreme Court’s decision in Redwing v. Catholic Bishop for the Diocese of Memphis refreshed our recollection of the law and the cases establishing it with these words:

the discovery rule … include[s] not only the discovery of the injury but also the discovery of the source of the injury. Sherrill v. Souder, 325 S.W.3d 584, 595 (Tenn. 2010) (holding that the cause of action accrues when the plaintiff discovers both the injury and the “identity of the person or persons whose wrongful conduct caused the injury”); John Kohl & Co. v. Dearborn & Ewing, 977 S.W.2d 528, 532 (Tenn. 1998) (holding that the cause of action accrues when the plaintiff knows or should know that it sustained an injury “as a result of wrongful … conduct by the defendant”); Wyatt v. A-Best Co., 910 S.W.2d 851, 855 (Tenn. 1995) (holding that “a prerequisite to the running of the statute of limitations is [the] plaintiff’s reasonable knowledge of the injury, its cause and origin”); Foster v. Harris, 633 S.W.2d 304, 305 (Tenn. 1982) (holding that “no judicial remedy [is] available to [a] plaintiff until he [or she] discover[s], or reasonably should have discovered, (1) the occasion, the manner and means by which a breach of duty occurred that produced his [or her] injury; and (2) the identity of the defendant who breached the duty.”).[27]

The Foster v. Harris decision will be of the most assistance to a plaintiff in cases arising under the hypothetical described above. The plaintiff will ordinarily know of the injury, and will often know of “facts sufficient to put a reasonable person on notice that he [or she] has suffered an injury as a result of wrongful conduct.”[28] What that plaintiff in the hypothetical does not know is the identity of the person who breached the duty, and what role this person played in the events. Thus, the statute of limitations against C does not begin to run until plaintiff knew, or reasonably should have known, the “who, what, when and how” of the event.[29]

Before some plaintiff’s lawyer thinks that Foster v. Harris is the golden get-out-of-jail free card, it is essential to remember that the statute of limitations is triggered not by what is known, but rather by what reasonably should have been discovered. That is why the hypothetical was phrased as it was — the reader was asked to assume that there is no public evidence that C is involved in the event, and plaintiff is otherwise unaware of C’s role in the event. The fact that an injury occurs that plaintiff believes to be the fault of Defendant A may put a duty on plaintiff to conduct a reasonable investigation to see if anyone else is at fault,[30] but the one-year statute of limitations as to the liability of C (or for that matter, B) does not begin to run until plaintiff discovers or reasonably should have discovered the “means, manner and occasion of the injury” and the “identity of the tortfeasor.”[31]

One can see that in an appropriate case, the discovery rule may give rise to another way for plaintiff to solve a Mills issue. Assume plaintiff is injured on Day 1, immediately believes A to be at fault, and neither knows nor reasonably should know about the fault of any other person. Plaintiff hires a lawyer on Day 150, and a reasonable investigation by the lawyer confirms plaintiff’s thoughts about the liability of A. Plaintiff sues A on Day 240, and then learns on Day 300 (through responses to discovery served with the complaint) of the existence of B in the event giving rise to plaintiff’s injuries. However, A is deposed on Day 366, and provides facts from which one could reasonably conclude that B has some degree of fault in causing plaintiff’s injuries. On Day 376, A moves to amend his answer to blame B. The motion to amend is granted, and on Day 395 plaintiff amends her complaint to sue B.

Should plaintiff rely on the discovery rule or §20-1-119 to fight off B’s statute of limitations defense? After Mills, plaintiff should rely first on the discovery rule. Why? A reasonable argument can be made that the statute of limitations against B did not begin to run until Day 300 (the day plaintiff first learned that B was even involved in the event), and perhaps even Day 366 (when facts were learned that pointed to the conclusion that B’s conduct contributed to cause the injury). By relying first on the discovery rule to maintain a claim against B, plaintiff will be in the position of being able to use §20-1-119, in the event B later attempts to allege fault against C (whose existence is also unknown to plaintiff), because B was sued within the statute of limitations applicable to B. Note also under these facts that plaintiff could rely on the discovery rule to maintain a later claim against C, assuming that C was sued within one year of the time plaintiff knew or reasonably should have known of C’s existence and involvement in the injury-causing event.

Before going further, note that the words “reasonable” and “reasonably” appear all over this hypothetical. You can be assured that one person’s reasonable conduct is another person’s unreasonable conduct. For example, B (or C) will later argue that plaintiff and her lawyer did not do a reasonable job investigating the claim before filing suit. They will argue that plaintiff’s lawyer waited too long to file suit after being hired. They will argue that plaintiff did not insist on interrogatory answers on the 45th day after they were served, and did not notice depositions with the complaint as the rules permit. Thus, B (or C) will argue, plaintiff reasonably could have discovered the role of B (or C) earlier, meaning the statute of limitations against B (or C) started earlier, and resulting in the statute barring the claim against B (or C). At the end of the day, the jury will be asked to determine whether plaintiff’s conduct was reasonable or not.[32]

Note that the discovery rule can also be used to maintain a claim against C, even if C is not blamed by B for several years. The key is what the plaintiff knew or reasonably should have known about the existence and involvement of C. Now more than ever, the diligence of the plaintiff’s lawyer is going to impact the potential rights of the plaintiff.33 The casual plaintiff’s lawyer (one who picks up a contingent fee file only when there is no hourly fee work to do) is playing with fire after Mills.

Of course, in real life, the facts will often be much more convoluted than this simple hypothetical. Chances are that C’s identity will be known, but its role will be unknown or misunderstood. Some claims adjuster will be asked to, but will not, share information about the identity of a third party. A motion to compel hearing will be delayed for two months because one lawyer was ill on one available date, and will be continued again so the other lawyer could take her kids to Disneyworld on Spring Break on the other available date. There will be accusations and counter-accusations of sloppy lawyering and deliberate hiding of relevant information. The uncertainty of how the discovery rule will be applied in any given case will cause stress on lawyers and their clients.

Conclusion

At the end of the day, Mills is not a catastrophic development in Tennessee tort law. Rather, it is just another decision that places a burden on plaintiff’s counsel to develop a strategy and employ tactics to attempt to avoid the risk of an empty chair at trial. The biggest hazard faced by plaintiffs occurs when the wrongdoers have a business or insurance coverage reason to collude with one another to create an empty chair.

Notes

  1. 833 S.W.2d 52 (Tenn. 1992).
  2. Id. at 58.
  3. Id.
  4. Id.
  5. The statute has been modified several times since it was first enacted into law in 1993. None of those changes impacted the resolution of Mills v. Fulmarque, —-S.W.3d —-. 2012 WL 600615 (Tenn. Feb. 24, 2012) and thus will not be discussed in this article.
  6. Unfortunately, the title of the statute is incorrect. The law does not provide for joinder of third-party defendants, but instead permits non-parties to be joined as defendants.
  7. Tenn. Code Ann. §20-1-119(d).
  8. As indicated in the text, subsection (d) of the statute does not ordinarily permit the non-party to be added as a defendant under these circumstances. However, the statute recognizes one exception to this rule, and there may be another. First, the statute provides that a new defendant may be added if there was “an action originally commenced in general sessions court and subsequently recommenced in circuit or chancery court.” Second, one could foresee a circumstance where equity would require a different result. Assume, for example, there was a scheduling order in place in the original case that imposed a deadline for allegation of fault against non-parties, that deadline passed with no such allegation, and the plaintiff non-suited the case in reliance on the state of the pleadings. Under these facts, the plaintiff might be able to persuade a court that the defendant in the new case could not blame another unless new facts that tended to show the fault of a non-party and which were previously unavailable to the defendant had come to light. Once again, however, there is no case law on point.
  9. Tenn. Code Ann. §20-1-119(d). This provision has been applied in several cases, including McCullough v. Johnson City Emergency Physicians P.C., 106 S.W.3d 36 (Tenn. Ct. App. 1998).
  10. See, e.g.¸ Schultz v. Davis, 495 F.3d 289, 293-95 (6th Cir. 2007) (erroneously provides that the 90-day period to add a party defendant only applies if the original statute of limitations has expired at the time the answer is filed); (Soper v. Wal-Mart Stores Inc., 923 F. Supp. 1032, 1038 (M.D. Tenn. 1996) (mistakenly provides that the 90-day period for adding a party defendant can be triggered by an answer that pleads fault of a “third person” but does not identify the third-person). The problems with the federal interpretation of §20-1-119 are discussed in more detail in Chapter 5 of Day, JA, et al., Tennessee Law of Comparative Fault (2010).
  11. A party in a federal court proceeding can ask the federal court to certify questions of state law to the Tennessee Supreme Court. Tennessee Supreme Court Rules, Rule 23.
  12. Of course, there are lots of little details that impact the application of Tenn. Code Ann. §20-1-119, but they are beyond the scope of this article. The details are discussed in Chapter 5 of Day, JA, et al., Tennessee Law of Comparative Fault (2010).
  13. Mills v. Fulmarque, —- S.W.3d —-, 2012 WL 600615 at *1 (Tenn. Feb. 24, 2012).
  14. Id. at *1-2.
  15. The author has intentionally omitted discussion of various procedural matters that came up along the way during the more than seven years this case was two different trial courts. This procedural history raises lots of interesting questions, but the answers, if any, to those questions do not appear to be relevant to the issue ultimately decided by the Tennessee Supreme Court.
  16. Mills v. Fulmarque, —- S.W.3d —-, No. W2010-00933-COA-R3-CV, 2010 WL 5449839, at *1 (Tenn. Ct. App. Dec. 23, 2010). Here is how the Supreme Court interpreted the holding of the Court of Appeals:
    [T]heCourt of Appeals interpreted the phrase “applicable statute of limitations” as referring both to the one-year limitation period for personal injury causes of action and “to the limitation period as extended by the ninety-day window.” Mills v. Fulmarque Inc., No. W2010-00933-COA-R3-CV, 2010 WL 5449839, at *1 (Tenn. Ct. App. Dec. 23, 2010). Applying this interpretation, the Court of Appeals determined that, when Aaron Rents was added after expiration of the one-year statute of limitations, but within ninety days of The Royal Group’s amended answer, Aaron Rents had been “named in an amended complaint filed within the applicable statute of limitations” as required by section 20-1-119. Thus, the Court of Appeals explained, when Aaron Rents’ answer alleged comparative fault against Fulmarque, section 20-1-119 was again triggered, affording the Millses a second ninety-day period within which to file an amended complaint naming Fulmarque as a defendant. Because the Millses filed an amended complaint naming Fulmarque within this second ninety-day period, the Court of Appeals concluded that plaintiffs’ lawsuit against Fulmarque was timely.
    Id. at *3.
  17. Mills v. Fulmarque, —- S.W.3d —-, No. W2010-00933-COA-R3-CV, 2010 WL 5449839, at *5 (Tenn. Ct. App. Dec. 23, 2010). (footnote omitted.)
  18. Id. at *6 (footnote omitted) (citation omitted).
  19. Id. at *7. Justice Gary Wade dissented, arguing that Tenn. Code Ann. §20-1-119 “allows a successive ninety-day window for a plaintiff who amends his or her complaint within ninety days after the identification of an additional comparative tortfeasor.”
  20. Id. at * 2 footnote 5.
  21. Id.
  22. Why this parenthetical comment? Because plaintiff will want to avoid C’s later argument that plaintiff and A knew of the potential fault of C for more than 90 days, and neither blamed C within the 90-day period. Will such an argument work to permit C to get the case dismissed by arguing that the statute of limitations has expired? I do not know. But, the issue can be avoided by the prompt action of plaintiff and A.
  23. Note, however, that in some types of cases, the expiration of a statute of repose may impact the ability to add a defendant like C as time goes on.
  24. Tenn. Code Ann. §29-26-122.
  25. Recall that plaintiff can sue C if the original statute of limitations has not run. Thus, if plaintiff is a minor or operating under a disability, the original statute of limitations has not expired and Mills does not come into play.
  26. Redwing v. Catholic Bishop for the Diocese of Memphis, —-S.W.3d —-, 2012 WL 604481 at * 17 (Tenn. Feb. 24, 2012), citing McCroskey v. Bryant Air Conditioning Co., 524 S.W.2d 487, 491 (Tenn. 1975).
  27. Id.
  28. Carvell v. Bottoms, 900 S.W.2d 23, 29 (Tenn. 1995) (quoting Roe v. Jefferson, 875 S.W.2d 653, 657 (Tenn. 1994)).
  29. As explained in more detail in the following paragraph, the discovery rule does not permit a plaintiff to wait until he or she knows the full extent of the damages to take action. B & B Enters. of Wilson Cnty LLC v. City of Lebanon, 318 S.W.3d 839, 849 (Tenn. 2010). Nor can a plaintiff delay filing suit until it knows the specific legal claim he or she has (John Kohl & Co. v. Dearborn & Ewing, 977 S.W.2d 528, 532 (Tenn. 1998)), or until he or she discovers all of the facts that affect the merits of the claim (Mills v. Booth, 344 S.W.3d 922, 929 (Tenn. Ct. App. 2010)).
  30. The word “may” is used in this sentence because there are many, many events that give rise to injury or death that do not necessarily give rise a duty to inquire whether anyone is at fault, or if someone other than the most obvious person is at fault. While one could argue that once a lawyer gets involved, it is the responsibility of a lawyer to give reasonable consideration to undertaking an effort to determine if there are other tortfeasors, it is hard to argue that the plaintiff has that duty under most fact situations giving rise to injury and death.
  31. Plaintiffs must keep in mind that the discovery rule does not trump statutes of repose.
  32. This is true unless reasonable minds could not differ, and the conduct of the plaintiff was reasonable (or unreasonable) as a matter of law. If the material facts are undisputed, this issue could arise on a motion for summary judgment. The issue could also arise on a motion for directed verdict.
  33. The potential issues here are complicated and scary. Under the hypothetical, if the plaintiff and her lawyer believe A is solely at fault and have no reason to believe that anyone else played any role in the event, will an effort by the plaintiff to have settlement negotiations prior to filing suit be later viewed as an “unreasonable” delay, and that there should have been some effort to determine whether others are involved? Will B (or C) be permitted to argue that plaintiff would have discovered B’s role earlier if she had not attempted pre-suit settlement?

John Day JOHN A. DAY, a fellow in the American College of Trial Lawyers, practices tort and other civil litigation across Tennessee. He is a co-author of Tennessee Law of Comparative Fault and the editor of Day on Torts: Leading Cases in Tennessee Tort Law. He is also the publisher and editor of the monthly newsletter Tennessee Trial Law Report and a regular columnist for the Tennessee Bar Journal.