# FILED May 1, 1997 Cecil Crowson, Jr . App ellate C ou rt Clerk IN THE COURT OF AP PEALS OF

TENNESSEE, WESTE RN SECTION AT JACKS ON

_______________________________________________________ ) CHARLES R. B ROWDER and ) Shelby County Circuit Court TERESA NOLAN

D BROWDER , ) No. 63317 T.D. ) Plaintiff

s/Appella nts. )

) VS. ) C. A. NO. 02A01-9602-CV-00039 ) JERRY C. M ORRIS and ) CHRIS CASTLEBERRY, ET AL ) ) Defend ant/Appe

llees. ) )

______________________________________________________________________________ From the Circuit Cou

rt of Shel by C ounty

at Memphis
. Honorable Wyeth Chandler, Judge

Randall J. Fishman , Mark A. Mesler , BALL IN, BAL LI N & FISHMAN, P.C., Memphis, Tennessee Attorney for Plain tiffs/App ellants. J. Cecil McWhirter , McWHIRTER & WYATT, Memphis, Tennessee At to rn ey for De fe nd an ts /A pp el le es Je rr y C. Mo rr is an d C hr is Ca st le be rr y. James W. Cook , CARD, COOK & HOLT, Memphis, Tenne ssee Attorney for D efendant/Appellee General Ac cident Group. Robert L. Moore , THOMAS, HENDRIX, HARVEY, JOHNSON & MI TCHELL , Memphis, Tennessee Attorney for D efendant/Appellee Paul Davis Sy stems, Inc.

OPINI ON FIL

ED: AFFI RMED AND

REMANDED FARMER, J.
CRAWFORD, P.J., W.S. : (Concur s) HIGHERS, J. : (Concur s)1 Mrs. Bro wder’s c laim was f or loss of consorti um. This is an interlocutory

appeal b y a

ppellant s, Charle s R. and Te resa Noland Browder, fro m the trial court’s denial of a motion seeking to amend their complaint to name a n addi tiona l party defendant pursuant to T.C.A. § 20-1-119. The statute was enacted in response to the supreme court’s decision in Mc Intyre v. Balentine , 833 S.W.2d 52 (Tenn. 1992), which abolished the doctrine of contributory

negligence in Tennessee

and adopted principles of comparative fault. The statute allots a plaintiff in cases of comparative fault additional time bey ond the normal running of the statute of limitations within which to join a previously unnamed de fendant by e

ither amendment of the complaint or institution of a separate action. The issue present ed here is whethe

r the stat ute
as enacte d contemp lates the joinder o f a third p arty

defenda nt whose li ability , if any, is vicarious
on ly.

The following facts are before us: On July 25, 1994, the appellants filed suit aga inst Jerry C. Morris and Chris Castleberry f or injuries Mr. Browde

r alleg edly

sustaine d in an aut

omobile accident with Morris on July 26, 1993. 1 T he compla int a llegesthat at the

time of the

accide nt, Morris was operating a vehicle owned by Castleberry “ with the consent, permission, authority, and about the busine ss of Mr. Ca stle berry.” Th e named d efenda nts as well as the a

ppellant s’ liabilit

y insurer, General Accident I nsurance Company , filed answers to the complaint. General Accident’s
answer was filed on September 19, 1994. U pon motion, the trial court allowed General Accident to amend its a

nswer, to conform withcertain

facts made known during discovery , and assert that at the time of

the accident Morris was operating an automobile owned by Castlebe rry, but was on or about the business of his employer, Paul Da vis Systems, and that Paul Davi s Sys tems w as an unnameddefendant. General Accident’s f irst amended answer wa s filed October 19, 1995. On November

2, 1995, the appell ants moved to amendtheir co mplaint to s pecific ally name Paul

Davis Systems as an ad diti onal d efenda nt. As noted , the m otio n was d enied with this appeal resul ting.

The issue on appea l as fram ed by Appellan ts is as follows:

Whether the trial court erred by

denying the Plaintiff

s’ motion to seek leave of court to file an Amended Complaint aga inst Paul Davis Systems, I

nc., where the Def

e ndant, General Accident Insurance Company, filed

an Amended

Answer, naming Pa

ul Davis2 Appellees Morris, Castleberry and General Accident have adopted the arguments of Appellan ts for pur poses of t his appea l. Syst ems as an unnamed defendant, and where the Plaintiffs then sought to name this party asa defendant pursuant to Tennessee Code Annotated Section 20-1-119?

The statu te provid es, as he re pert inent:
Compar at ive fault -- Joinder of third party defendants . -- (a) In civilactions where compar a tive fault is or becomes an issue, if a defendant named in a

n origin al compla

int initiating a suit

filed with in the applica

ble statu te of li mitations, or named in an amended complaint filed with

in the appli cable st

atute of limitati ons, alle ges 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 r ecovery , and if

the plaintiff’s cause or causes of action against such per son would be barred by any applica ble statute of limitations but for the operation of this section, the plaintiff may, within ninety (90) days of

t he fil ing of th

e first answer or first amended answer a lleging such person’s fault, either: (1) Amend the co mplaint to add such person as a defendant pursuant to Rule 15 of the Tennessee Rules of Civil Procedure and cause process to be issued for that person; or (2) Institute a separate action ag ainst that p erson by filin g a summons and complaint. . . . (b) A cause

of action brought within ninety (90) days pur suant to subsection (a) shall not be b arre d by any statute of

limitations
. This section shall not extend any applicable statute of repose, . . . . (c) This section shall neither shorten nor lengthen th e applica ble statute of limitations for any c ause of action, other than as provided in subsection (a).

. . . . (e) This section shall not limit the r ight of a ny d efenda nt 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 pla intiff seeks re co ve ry.

It is agreed that resolution of the issue requires a proper interpreta tion of the langua ge “caused or contributed to” as utilized within the statute. A ppellant s assert 2 that the st atute should notbe so narrowly

construed as to prohibit the joining of those defendants who, it is alleged, share only financi al respo nsibility

for a pla intiff ’salleged injuries . Appella nts rely upon the legislative history of the sta tute as su pporting their position. To the contrary, Paul Da vis Systems, on

whose behalf a brief has been filed with this Court, ar

gues tha t the statu te was no t intende d to apply to those who share on

ly vicariou s r e sponsibilit

y a s that per son or ent

ity “ has done nothing t o contribute to the circumstances giving rise to the injury suffered by

the plaintiff. . . .”The cardinal rule of statutory construction is to effectuate the legislative intent, with all rules of construction being but aides to that end. Locust v. State , 912 S.W.2d 716, 718 (Tenn. App. 1995) . We m ust i niti ally loo k to t he lan guage of the statute itself in determining the intent of the legislature. Courts are restricted to the natural and ordinary meaning of thelanguage used by the legislaturewithin the four corners of the stat ute, unle ss an ambi guity require s resort e

lsewher e to ascert ainlegislative intent. Austin v. Memphis Publ’g Co. , 655 S.W.2d 146, 148 (Tenn. 1983). A statute isambiguo

us if it is c apable

of conveying

more than one meaning. In re Conser vatorship of Clayton , 914 S.W.2d 84, 90 (Ten n. App . 1995). We must consid

er the la nguag e employ

ed in cont ext of the entire st

atute wit hout any forced or subtle construction which

would extend or limit its meaning. Weaver

v. Woods , 594 S.W.2d 693, 695 (Tenn. 1980); Wilson v. Jo hnson County , 879 S.W.2d 807, 809 (Tenn. 1994). We are to assume that the legisla ture use d each w ord in the statute purposel y and that t

he use of these words convey s some intent and has a meaning and purpose. Locust , 912 S.W.2d a

t 718. Wher

e words o f the stat

ute are clear a nd plain a nd fully express t h e legislature’s intent, there is no room to resort to auxiliary rules of c onstruction, Roberson v . Universit y of Tennessee , 912 S.W.2d 746, 747 (Tenn. App. 1995), and we need only enforce t h e statute as written. Clayton , 914 S.W.2d at 90.

With these b asic rules of statutory construction in mind, we hold the statute before us is amenable to but one interpretation and, thus, unambiguous. It is assumed that the legislature caref ully ch os e and purposely

used the words “caused or contributed to.” These words must be construedto mean what they sa y. Roberson , 912 S.W.2d at 747. Under their plain meaning, t h e statute limits a plaintiff to additionally name onl y those defe ndants who allegedly

“caused or contributedto” the plai ntiff’s in juries. By definition, one who is “vicariously” liable is not one who has “caused or contributed to” another’s injuries. We find no other la nguage in the four corne

rs of th e s tatute to s ugge st an alte rnative or expansi ve meaning. As w e have d etermined the statu

te unambiguous in this respect, it is unnecessary and, indeed, improper

to refer to the legislative history offered for explanation by Appellants. See Tenne

ssee V alley Auth. v

. Hill , 437 U.S. 153 (1978); D. Canale & C

o. v. Cela uro , 765 S.W.2d 736, 738 (Tenn. 1989).

Ac co rd in gl y, we concludethat the trial court was correct in deny ing the appella

nts’ motion to amend their complaint to join Paul Davis Systems as an additional defe ndant as the partiesagree

that its liability, if any , is vicarious only. Paul Davis Sy stems neither caused nor contributed to Plaintiffs’ injuries or dam ages. We re mand t his ca use to the tr ial co urt fo r furt her pro ceedin gs herewit h consistent. Costs are assessed against Charles R. and Teresa Noland Browder, for which
ex ec ut io n m ay i ss ue if

ne ce ss ar y.

___________________________________ FAR MER , J.

______________________________ CRAWFORD, P.J., W.S. (Conc urs)

______________________________ HIG HERS, J. (Conc

urs)