Most lawyers know that the General Assembly has determined that Tennessee juries cannot be trusted with determining compensatory damages in tort cases involving serious injury or death.[1] And that employers rarely should be held responsible for even capped punitive damages arising from reckless conduct of their employees.[2] And that beekeepers[3] and those engaged in bovine activity[4] and agritourism[5] need protection from lawsuits.

But many lawyers do not know that the tort reform legislation also includes new rules for determining where many civil cases can be filed.

Yes, the tort reform legislation has changed the law of venue for transitory[6] actions, including personal injury and wrongful death cases. In a case between human beings, a defendant may now be sued only where the defendant resides or where the cause of action arose.[7] Consistent with former law, if the plaintiff and defendant reside in the same county, the defendant can be sued only in the county where the two reside or in the county where the cause of action arose.[8]

If the defendant is not a human being, different rules apply. The new statute says that a non-human defendant organized under Tennessee law shall be sued in the county where (a) all or a substantial part of the events or omissions giving rise to the cause of action accrued;9 or (b) any defendant maintains its principal office.[10]

Non-human defendants organized under the law of a place other than Tennessee may be sued in the county where (a) all or a substantial part of the events or omissions giving rise to the cause of action accrued;[11] or (b) the county where the defendant’s registered agent for service of process is located.[12]

Finally, non-human defendants who do not maintain a registered agent in Tennessee can also be sued in the county where the person designated by statute as the defendants’ agent for service of process is located.[13]

So, let’s try to apply this law. If Smith from Smith County and Jones from Lake County are in a car wreck in Dickson County, Smith may sue Jones in either Lake County (where Jones resides) or Dickson County (where the cause of action arose).

Next, assume Smith from Smith County is hurt in a car wreck in Davidson County caused by Jones from Lake County and Hamilton from Hamilton County. Smith can probably file suit in Lake County (where Jones resides), Hamilton County (where Hamilton resides) or Davidson County (where the cause of action accrued). Under the former statute, if venue was appropriate as to one defendant then venue was ordinarily appropriate for the remaining defendants,[14] and presumably that rule would continue to apply in cases involving human defendants.

Now, assume that Smith from Smith County is hurt in a car wreck in Henry County caused by the negligence of Harris from Williamson County. At the time of the wreck Harris was working on behalf of LHAG LLC, a Tennessee entity with its principle office in Lake County and its registered agent in Knox County. Smith can file suit in Lake County (LHAG’s principal office) or Henry County (where the cause of action accrued). LHAG cannot be sued in Knox County (where its registered agent is located) because it is a Tennessee entity and the location of its registered agent does not in and of itself impact the determination of proper venue.

If LHAG was, say, a Kentucky company, it could be sued in the county where its registered agent was located or, if it did not have a registered agent, in Nashville (because Tennessee law provides that a company that does not appoint a registered agent appoints the Tennessee Secretary of State as its agent for service of process).[15]

It is an open question whether Smith can file suit where Harris resides (Williamson County) because Tenn. Code Ann. § 20-4-104 (A) provides that a non-human “shall” be sued only in the locations identified in the statute. LHAG’s lawyers will argue that the “shall” language of statute governing venue for non-humans trumps the permissive language (“may”) the statute governing venue for humans (Tenn. Code Ann. § 20-4-101(a)) when a case has human and non-human defendants. It remains to be seen if this argument will prevail.

It is also unknown what impact the “shall” language in Tenn. Code Ann. § 20-4-104(A) will have in the application of what already is an extremely narrow forum non conveniens doctrine seeking an intrastate transfer of venue. Presumably, a corporation or other non-human entity that is sued where the law says it “shall” be sued will never be able to successfully argue forum non conveniens in an effort to transfer a case to another Tennessee venue.

The new venue provisions expressly do not trump any venue rules that may be applicable to claims arising under statutes with specific venue provisions.[16]

This component of the tort reform effort has a significant impact on where any transitory civil action may be prosecuted.

Notes

1. Tenn. Code Ann. § 29-39-102.
2. Tenn. Code Ann. § 29-39-104.
3. Tenn. Code Ann. § 44-15-125.
4. Tenn. Code Ann. § 44-21-101 et seq.
5. Tenn. Code Ann. § 43-39-101 et seq.
6. “Transitory” actions are actions for causes that may have happened anywhere. Curtis v. Garrison, 364 S.W.2d 933, 934 (Tenn. 1963). A “local” action is one that arises only in one place. Burger v. Parker, 290 S.W.22, 22-23 (Tenn. 1926).
7. Tenn. Code Ann.§ 20-4-101(a). Under the former version of the statute, a defendant could also be sued where he, she or it was “found.”
8. Tenn. Code Ann.§ 20-4-101(b). This provision may appear unnecessary now that the statute has been amended to prohibit a plaintiff from filing suit where the defendant can be found. However, it remains an important provision of the law of venue in tort cases. See, e.g., Pack v. Ross, 288 S.W. 3d 870 (Tenn. Ct. App. 2008) (proper venue for health care liability claim against hospital was the county of which hospital and patient were residents even though physician and physician’s employer, who were also residents, were residents of county in which the action was filed).
9. Tenn. Code Ann.§ 20-4-104(A)(1). We can expect venue litigation over this choice of words. For instance, we can expect plaintiffs to allege that even though the victim of fraud was located and some aspects of the fraud took place in Franklin County, Tennessee, the scheme to defraud was hatched in Davidson County, Tennessee, and thus venue should be appropriate in the latter.
10. Tenn. Code Ann.§ 20-4-104(A)(2). The term “principal office” is not defined. It would seem to include, at a minimum, the location designated by the entity as its “principal place of business” in its filings with the Tennessee Secretary of State.
11. Tenn. Code Ann.§ 20-4-104(A)(1).
12. Tenn. Code Ann.§ 20-4-104(A)(3)(A).
13. Tenn. Code Ann.§ 20-4-104(A)(3)(B).
14. Mills v. Wong, 39 S.W.3d 188, 189 (Tenn. Ct. App. 2000). The exception to this general rule is when a defendant has a common county residence with the plaintiff. Tenn. Code Ann. § 20-4-101(b).
15. Tenn. Code Ann. § 48-208-104(b).
16. Tenn. Code Ann. § 20-4-108. For example, the Tennessee Consumer Protection Act has a much broader venue provision. Tenn. Code Ann. § 47-18-109(a)(2).

JOHN A. DAY is a trial lawyer in Brentwood, Tennessee, who primarily represents human plaintiffs, preferably against non-human defendants. He is the author of four books, most recently Tennessee Law of Civil Trial.