Brief Summary: The identification of a potential non-party tortfeasor by a defendant in discovery responses (as opposed to in an answer) is not sufficient to trigger the extension of the statute of limitations that is allowed under T.C.A. § 20-1-119 for assertions of comparative fault.
Analysis: The Tennessee Court of Appeals recently decided an interesting case involving T.C.A. § 20-1-119 and its application in the context of discovery responses. The Tennessee Court of Appeals decision of Rev. J.M. Shaffer v. Memphis Airport Authority et. al., No. W2012-00237-COA-R9-CV, 2013 WL 209309 (Tenn. Ct. App. January 18, 2013) discussed whether the ninety day statutory period, (under T.C.A. § 20-1-119) that allows a plaintiff to bring in a new defendant outside of the statute of limitations, was triggered when a defendant answered discovery identifying a potential tortfeasor. Normally this statute is used when a defendant asserts comparative fault in an answer to the complaint outside of the statute of limitation time period for the cause of action.
In this case, the plaintiff was allegedly injured in a slip and fall on April 29, 2009. Shaffer at 1. One year later on April 29, 2010, Shaffer filed a lawsuit in Circuit Court. Shaffer at 1. The defendant filed an answer to the complaint on September 1, 2010 and asserted comparative fault against "other parties or non-parties" without identifying them by name. Shaffer at 1,2. On February 25, 2011, the defendant provided discovery responses identifying a potential third-party that was responsible under Tennessee comparative fault principles. Shaffer at 2. On May 4, 2011, 245 days after the defendant filed the answer, the plaintiff filed an amended complaint against this newly identified entity. Shaffer at 2. This new defendant filed a motion to dismiss citing the applicable one year statute of limitation and the assertion that T.C.A. § 20-1-119 did not apply to extend the statute of limitation in this circumstance based on the plain language in the statute.
T.C.A. § 20-1-119 is a very important statute under Tennessee law when dealing with any comparative fault assertion against an entity that is not named in the original complaint. It basically allows the plaintiff to file a complaint against an entity outside of the statute of limitations when a defendant in an answer or amended answer asserts comparative fault against a non-party. The plaintiff has ninety days to file an amended complaint to assert fault against the newly identified tortfeasor when comparative fault is first asserted. The full text of the part of T.C.A. § 20-1-119 that deals with this issue is as follows:
(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 (90) 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 …
The issue in the Shaffer case was the defendant did not file an answer or amended answer that asserted fault against the entity that was brought in as a party. There was an assertion of fault in the first answer, however, the alleged tortfeasor was not named. Later, the defendant named the tortfeasor in response to written discovery and sixty-five days later the plaintiff filed an amended complaint against this newly identified individual. The question therefore was whether T.C.A. § 20-1-119 allowed the plaintiff to bring suit against this newly identified potential tortfeasor because otherwise the one year statute of limitations would bar the claim.
The Tennessee Court of Appeals found that the plain language of the statute requires that a defendant allege in an "answer or amended answer" the identity of the previously unknown tortfeasor in order for T.C.A. § 20-1-119 to extend the statute of limitations. The court specifically found a "discovery response simply is not the same thing as an answer." Shaffer at 7. As a result, the court held that "we must conclude that Section 20-1-119 is not applicable under the facts of this case, and Shaffer has not met her burden of establishing that her claim against SMS is excepted from the statute of limitations under Section 20-1-119." Shaffer at 7. As a result, the plaintiff's claim against this entity was dismissed.
One question I have in this case is when this case is remanded back to the trial court for further consideration, what happens if the current defendant files a motion to amend the answer to properly assert comparative fault against this entity (as opposed to simply doing so in the discovery responses)? Does this assertion of comparative fault at this late date trigger T.C.A. § 20-1-119 and allow the plaintiff to simply file an amended complaint to get around the statute of limitations? The plain language of the statute does not say anything about the time within which the defendant is required to make an assertion of comparative fault in an answer. However, it is possible the trial judge could deny a motion to amend because it is so late. I will try to keep an eye on this case to see what happens on remand to the trial court.