IN THE SUPREME COURT OF TENNESSEE

AT NASHVILLE

February 5, 2015 Session

RICHARD MORENO v. CITY OF CLARKSVILLE

 Appeal by Permission from the Court of Appeals, Middle Section

Circuit Court for Montgomery County

No. MCCCCVOD122906 Ross H. Hicks, Judge

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No. M2013-01465-SC-R11-CV – Filed September 18, 2015

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GARY R. WADE, J., dissenting.

As early as 1799, the Superior Court of Law and Equity of Tennessee adopted the 

principle that the courts of this state should interpret the law in a manner that elevates “the 

justice of the case” over “technical formality.” Glasgow‟s Lessee v. Smith, 1 Tenn. (1 

Overt.) 144, 151 (1799). It is equally well established that “Tennessee law strongly favors 

the resolution of all disputes on their merits,” and that remedial statutes must “be given a 

broad and liberal construction in order to achieve this goal.” Henley v. Cobb, 916 S.W.2d 

915, 916 (Tenn. 1996). This case involves a claim brought pursuant to the Claims 

Commission Act and hinges on the construction of Tennessee Code Annotated section 

20-1-119, a remedial statute intended to provide plaintiffs with a fair opportunity to add a

non-party when a defendant alleges that the non-party was comparatively at fault for a

plaintiff‟s injury. Becker v. Ford Motor Co., 431 S.W.3d 588, 592 (Tenn. 2014). The 

majority has concluded that in this instance Richard Moreno (the “Plaintiff”) cannot 

invoke section 20-1-119 because it applies only when the defendant alleging comparative 

fault is named in a pleading described as a “complaint” rather than a “notice of claim,” the 

latter being the statutory term used to describe the pleading that commences an action 

under the Claims Commission Act. In my view, the majority‟s interpretation of section 

20-1-119 is contrary to the plain meaning of the statute, elevates form over substance, and 

violates the principle that claims should be decided on the merits whenever possible. I

must, therefore, respectfully dissent.

Section 20-1-119 provides 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 
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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 . . . :

. . . .

(2) Institute a separate action against that person by filing a summons and 

complaint.

(Emphasis added.) The determinative question is how this statute should work in 

combination with the Claims Commission Act, Tenn. Code Ann. §§ 9-8-301 to -408, and 

the procedural rules promulgated by the Claims Commission, Tenn. Comp. R. & Regs. 

0310-01-.01 to -.05.

Under the Claims Commission Act, the first step is for the plaintiff to file a “written 

notice of [the] claim” in the State Treasury Department‟s Division of Claims 

Administration, Tenn. Code Ann. § 9-8-402(a)(1), which commences the suit for purposes 

of the statute of limitations, Tenn. Comp. R. & Regs. 0310-01-.01(2)(b) (“[A]ctions are 

commenced by filing a written notice of claim . . . with the Division of Claims

Administration.”). If the Division of Claims Administration denies the claim, the plaintiff 

can appeal to the Claims Commission. Tenn. Code Ann. § 9-8-402(c). If the Division of 

Claims Administration “fails to honor or deny the claim” within ninety days, it “shall 

automatically transfer the claim” to the Claims Commission. Id. Upon transfer, the 

plaintiff must file a formal complaint, which serves to translate the prior notice of claim 

into a pleading that complies with the Tennessee Rules of Civil Procedure. See Tenn. 

Comp. R. & Regs. 0310-01-.01(2)(d)(3). The State must then file an answer, as in a 

typical civil action.

In this instance, the Plaintiff complied with every step of this procedure. On 

December 24, 2009, the Plaintiff was driving in Clarksville when a tree located on state 

property fell on his car, resulting in serious injuries. The Plaintiff timely initiated his suit 

against the State on December 17, 2010, by filing a “notice of claim” in the Division of 

Claims Administration. Through no apparent fault of the Plaintiff, the Division of Claims 

Administration failed to take any action. As a result, on March 17, 2011, the claim was 

transferred to the Claims Commission by operation of Tennessee Code Annotated section 

9-8-402(c). On April 14, 2011, the Plaintiff filed the requisite formal complaint with the 
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Claims Commission. The State filed an answer on May 18, 2011. Sixteen months later, 

the State amended its answer, alleging for the first time that the City of Clarksville (the 

“City”) was comparatively at fault because the City‟s water run-off had eroded the ground 

around the tree that fell onto the Plaintiff‟s car.

Relying upon the ninety-day window to sue comparative tortfeasors provided by

Tennessee Code Annotated section 20-1-119(a)(2), the Plaintiff asserted a claim against 

the City in chancery court. The City moved to dismiss, arguing that section 20-1-119(a)

cannot apply here because the defendant who alleged comparative fault (the State), 

although named in a timely notice of claim, was not named in a “complaint” filed within 

the statute of limitations. The trial court granted the motion. Our Court of Appeals 

reversed, “look[ing] past form to substance” and holding that a plaintiff is entitled to 

proceed against a comparative tortfeasor pursuant to section 20-1-119(a)(2) so long as 

“[t]he notice of claim was filed within the applicable one-year statute of limitations.” 

Moreno v. City of Clarksville, No. M2013-01465-COA-R3-CV, 2014 WL 791935, at *3 

(Tenn. Ct. App. Feb. 25, 2014). By reinstating the judgment of the trial court, the majority 

has concluded that the Plaintiff is not entitled to assert a claim against the City pursuant to 

section 20-1-119(a)(2) because the State was not named in an “original complaint” that 

was “filed within the statute of limitations.” I disagree.

When construing statutes, our primary goal is to give effect to the intent of the 

General Assembly, as expressed by the plain meaning of the statutory terms. Eastman 

Chem. Co. v. Johnson, 151 S.W.3d 503, 507 (Tenn. 2004). The plain meaning of the term 

“complaint” is “[t]he initial pleading that starts a civil action and states the basis for the 

court‟s jurisdiction, the basis for the plaintiff‟s claim, and the demand for relief.” 

Complaint, Black‟s Law Dictionary (10th ed. 2014) (emphasis added). The “notice of 

claim” required by the Claims Commission Act meets this definition. It is the initial 

pleading that starts the action. Tenn. Comp. R. & Regs. 0310-01-.01(2)(b). It must 

identify the “state entity that allegedly caused the injury,” Tenn. Code Ann. § 

9-8-402(a)(2), thereby establishing jurisdiction, see id. § 9-8-307(a)(1)(C) (providing that 

jurisdiction under the Claims Commission Act extends to various actions against the State, 

including those “based on . . . [n]egligently created or maintained dangerous conditions on 

state controlled real property”). The notice of claim also must state the “circumstances 

upon which the claim is based,” including “the nature of the claimant‟s injury.” Id. § 

9-8-402(a)(2). In short, the notice of claim described in the Claims Commission Act meets 

the traditional criteria for a “complaint.”

The language surrounding the term “complaint” in section 20-1-119(a) further 

supports the Plaintiff‟s position. In particular, the statute provides that a plaintiff may sue 

any non-party named as a comparative tortfeasor by “a defendant named in an original 
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complaint initiating a suit.” (Emphasis added.) The critical question, therefore, is 

whether the defendant alleging comparative fault was named in the pleading that initiated 

the suit. Pursuant to Tennessee Rule of Civil Procedure 3, ordinary “civil actions are 

commenced by filing a complaint.” In a case governed by the Claims Commission Act,

“Rule 3 is not followed” and “actions are commenced by filing a written notice of claim.” 

Tenn. Comp. R. & Regs. 0310-01-.01(2)(b).

Further, as the facts here illustrate, the majority‟s interpretation of section 

20-1-119(a) is patently hyper-technical. The Plaintiff has been diligent throughout this 

action. Notwithstanding the Plaintiff‟s compliance with every applicable procedure, the 

majority has concluded that he has no right to sue the City as a comparative tortfeasor. 

This conclusion is based solely upon the fact that section 20-1-119(a) uses the term 

“original complaint,” whereas the Claims Commission Act refers to the pleading that 

commences the action as a “notice of claim.” The majority acknowledges that the purpose 

of section 20-1-119(a) is “to provide a plaintiff „with a fair opportunity to bring before 

the [trial] court all persons who caused or contributed to the [plaintiff‟s] injuries,‟” Becker, 

431 S.W.3d at 592 (alterations in original) (emphasis added) (quoting Mann v. Alpha Tau 

Omega Fraternity, 380 S.W.3d 42, 50 (Tenn. 2012)), and yet fails to construe section 

20-1-119 so as “to effectuate its remedial purpose.” Mann, 380 S.W.3d at 50.

Furthermore, every case relied upon by the majority is distinguishable. For 

example, in Grindstaff v. Bowman, our Court of Appeals held that the plaintiff could not 

proceed against a comparative tortfeasor under section 20-1-119(a) because the defendant 

had alleged comparative fault in a “letter to the plaintiff‟s attorney,” whereas the statute 

requires an allegation of comparative fault in an “answer or amended answer.” No. 

E2007-00135-COA-R3-CV, 2008 WL 2219274, at *4 (Tenn. Ct. App. May 29, 2008) 

(emphasis omitted) (quoting Tenn. Code Ann. § 20-1-119(a)). Our Court of Appeals has 

similarly held that section 20-1-119(a) is not available when a defendant alleges fault in a 

discovery response instead of its answer because “a discovery response simply is not the 

same thing as an answer.” Shaffer v. Memphis Airport Auth., Serv. Mgmt. Sys.,

No.W2012-00237-COA-R9-CV, 2013 WL 209309, at *8 (Tenn. Ct. App. Jan. 18, 2013)

(citation omitted); see also Mills v. Fulmarque, Inc., 360 S.W.3d 362, 370 (Tenn. 2012) 

(concluding that the term “statute of limitations” is not equivalent to the ninety-day 

window in section 20-1-119(a)). What makes this case different is that the “notice of 

claim” described in the Claims Commission Act is the functional equivalent of an “original 

complaint initiating a suit.” Tenn. Code Ann. § 20-1-119(a).

There is nothing “forced” or “unnatural” about concluding that the notice of claim, 

which commences the action and sets out the basis for the plaintiff‟s claim, qualifies as the 

“original complaint initiating a suit” for purposes of section 20-1-119(a). It is far more 
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“unnatural,” in my opinion, to conclude that only the formal complaint filed with the 

Claims Commission qualifies as the “original complaint initiating a suit” when the formal 

complaint does not initiate the suit. Similarly, it makes no sense to focus on whether the 

formal complaint was “filed within the applicable statute of limitations,” id., because it is 

the notice of claim, not the formal complaint, that determines whether the statute of 

limitations has been satisfied, Tenn. Comp. R. & Regs. 0310-01-.01(2)(b).

In summary, both the plain meaning and the purpose of section 20-1-119 support 

the conclusion that a plaintiff who has filed a timely notice of claim should be allowed to 

proceed against a comparative tortfeasor named in the State‟s answer. The Court of 

Appeals properly resolved this appeal by “look[ing] past form to substance.” Moreno, 

2014 WL 791935, at *3. This claim should be resolved on its merits. See Henry v. Goins, 

104 S.W.3d 475, 481 (Tenn. 2003); Henley, 916 S.W.2d at 916.

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GARY R. WADE, JUSTICE