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Posted by: Landry Butler on Feb 20, 2018

Court: TN Court of Appeals

Attorneys 1:

John I. Houseal, Jr. and Brandon D. Pettes, Memphis, Tennessee, for the appellants, Cordova Concrete, Inc. and Karloss Stevenson.

Attorneys 2:

Mark N. Geller and Glenn K. Vines, Memphis, Tennessee, for the appellees, Steven Santore and Stephanie Santore.

Martin W. Zummach, Southaven, Mississippi, for the appellee, Averitt Express, Inc.

Judge(s): CLEMENT

At issue in this personal injury action is whether the trial court erred by striking the defendant’s affirmative defense that an unknown “John Doe” driver of an Averitt Express truck was comparatively at fault for the plaintiff’s injuries. Relying on Brown v. Wal-Mart Discount Cities, 12 S.W.3d 785 (Tenn. 2000) and Tenn. Code Ann. § 20-1-119, the trial court struck the affirmative defense as to John Doe and Averitt Express upon the finding that the defendant failed to sufficiently identify John Doe so that the plaintiff may serve process on John Doe. We have determined the trial court’s discretionary decision to strike the affirmative defense of comparative fault as to John Doe and Averitt Express was premature because the defendant was not afforded a reasonable opportunity to engage in pre-trial discovery to endeavor as to the identity of John Doe in sufficient detail for the plaintiff to serve process on John Doe. Therefore, we reverse and remand for further proceedings consistent with this opinion.