# FILED
Ap ril 11, 1997 Cecil W. Crowson Ap pellate Cou rt Clerk 

## IN THE COURT OF APPEALS OF TENNESSEE MIDDLE SECTION AT NASHVILLE

PAUL GLE

N DRAPER, ) ) Plaintiff /Appella nt, )

) Davidson C ircuit ) No. 95C- 3755 VS. ) ) Appeal N o. ) 01A01-9609- CV-00394 CURT R EAVER and ) RICHARD ALAN TACEY, JR., ) ) Defenda nts/Appell ees. )

APPEAL FROM THE CIRCUIT COURT FOR DAVIDSON COUNTY

AT NASHVILLE, TENNESSEE THE HONORABLE MARIETTA M. SHIPLEY, JUDGE

For the Plaintiff/

Appellant : For the Defendant/Appellee Curt Reaver : Joseph P. Rusnak TUNE, ENTREKIN & WHITE Bryan Essary Nashville, Tennessee Joe W. Ellis, II GIDEON & WISEMAN Nashville, Tennessee
For the Defendant/Appellee Richard Alan Tacey, Jr. : Dennis E . Blevins Nashville, Tennessee


## AFFIRMED IN PART; VACATED IN PART

AND REMANDED

WILLIAM C. KOCH, JR., JUDGE1 The purpose of the am

endment w as obvious ly to enable Pi g Improve ment to ass ert its subrogation rights under Tenn. Code Ann. § 50-6-112 (c). In an affi davit

supporting the motion (continued...) -2- 

## O P I N I O N

This appeal stems from a three-ve hicle col lision o n I-65 in D avidson County. One driver filedsuit in the C ircuit Cou rt for D avidsonCounty agai nst his employerand the ow ners of the other t wo vehicles. The plai ntiff lat er voluntar

ily dismissed his claims ag ainst his em ployer and m

oved to amend his compla int to addhis employe

r as a plai ntiff. The trial court denied the motion and granted summary judgments di smissing the plaintiff ’s claims against the

ow ne rs of the othervehicles. The plaintiff asserts on this appeal that the tr ial court s houldhave permitted him to amend his compla int and that

th e su mmary judg ments woul d have been inappr

opriate ha d the trial court done so. While the trial court prop erly granted the summa

ry judgment s concerning the plaintiff’s personal injury claims, iterred by dismissing the plaintiff’s property d amage cl aims. In order to a void a multiplici ty of suits, the trial court should

have trea ted th e p laintiff’ s motion to amend his compla

int as a mot

ion b y the plaint

iff’s em ployer to intervene a s of right pursuant to Tenn. Code Ann. § 50-6-112(c) (1991). Accordi ngly, we vacate the summar

y judgments i n part and r emand the case for

further proceedin gs.

I.

On October 22, 1994, Paul Draper was involv ed in a three- vehicle c ollision
on I-65 in N ashville while attem pting to assi s t a strande d pedestr ian. On November

7, 1995, he

filed suit in the Circuit

Court for Davidson C ounty agains t his employer, Pi g Improvem ent Compan y, and the o wners of the o ther two vehicles involved in th e colli sion , Richard Alan Tacey, Jr. and Curt Reaver, seeking t o recover fo r personal injury an d damage to his perso nal prope rty.

On February 8, 1996, Mr. Reaver moved for

summary j udgment ass erting thatMr. Draper’s c laims we re time- barred. While this motion was pending, Mr. Draper voluntarily dismissed his claims a gainst Pig Improveme ntandmoved to amend his compla

int to add Pi g Improvement as a plaintiff. 1 The trial court1 (...continued)

to amend, Mr. Draper’s lawyer expla inedthat he had been retained to represent Pig Improvement “f orthe use a nd benef

it of Continental Cas ualty Compa ny.” In a ddition to f

iling a moti on to amendMr. Draper’s com p laint, the

lawyer a lso prepa red and f iled a se parate suit wher ein Pig Improvement

asserted its subrogation claims against Mes sr s. Reaver and Tacey. The later dismissal o f that suit

is the subje

ct of another app eal.

-3- granted Mr. Reaver’s motion for summary judgment before it heard Mr. Draper’s motionto a mend. T

hereaft er, Mr. Tacey f

iled a moti on for summ ary judgment also asser ting that Mr. Draper’s claims against him were time-barr ed. The trial courtconsolidate d both motions for hear ing, and on

June 20, 1996, entered an order granting Mr. Tacey’s motion for summ a ry judgment and denying Mr. Draper ’s motion to amend. T his appeal followed.

II.

We must first

address a threshold qu estionconcerni ng the viability of this appeal. After Mr. Draper filed his brief, Messrs. Reaver and Tacey, relyin g on the Eastern Section’ s opinion in C obb v. Be ier, App. No . 03A01-9 602-CV-0 0051, 1996 WL 375293 (Tenn. Ct. App. Ju ly 3, 1996 ), perm. app. granted (Tenn. Oct. 28, 1996), mo ved to dismis s the app eal because Mr. Draper had failed to file a copy of his n otice of a

ppe al with the clerk of the appellate court in accordance withTenn. R. App. P. 5( a). We took these motions under advisement in October 1996 in a nticipation

that the T ennessee S upreme C ourt would address thi s question. Rather

than delay ing the disposition of this appea

l, we ha ve electe d to proceed without the high court’s guidance.
Throughout

their eigh teen-yea r life spa n, the T ennessee Rules of A ppellate Procedure have not co nsistentlyrequired appellant s to file a

copy of the

notice of appeal with the a

ppellate c ourt cler

k. When t

he rules f irst beca me effe ctive in 1979, Tenn. R . App. P . 5(a) r equired the

appellant in a civil a

cti on to “serve a copy of the notice of

appeal . . . on the cler

k of the app ellate c ourt designa ted in the notice of appeal.” The Tennessee SupremeCourt rem oved the re quirement

in 1984 because

it “accomplished no vital purpose, but instead resulted in a surplus of notices where t

he appeal was ab andoned because of s ettlement or otherwis e.” Tenn. R. App. P. 5, cmt . to 1984 Ame ndment. In 1991, the Tennessee Supreme-4-

Courtrestored th e languag e to Tenn. R. Ap p. P. 5(a) that it had removed seven years earlie r.

The 1991 amendm

ent to Tenn. R. A

pp. P. 5( a) had litt

le no tic eable effect
on practice before the intermediate appellate court s. In f act, it p assed lar

gely without notice until the Cobb v. Beier decision. Within we eks after Cobb v. B eier, this court bega

n to recei ve a stead

y s tream of

mot ions to dismis s appeals f or failure to comply w ith the rei ncarnate d requi rement that the notice of appeal be filed with the

clerk of the appell ate court in addition to the trial cour t clerk. None of these motions contained a colorable showing of prejudice.

The Tenne ssee Supre me Court dec ided to rev iew Cobb v. Beier and on January 23, 1997, entered an order a mend ing Tenn. R. App. P. 5(a) to shift the obligation

of filing t

he notice of a

ppeal wit h the cler k of the app ellate

court fr om the appellan t to the clerk of the trial court. T he proposed

advisory c ommission comment notes that “ [s]ervic e of

a copy [of

the notice

of appeal ] on theappellate clerk is not jurisdicti onal.” T

his proposed

rule, if adopted, effecti vely eliminates prospectiv e difficult

ies cause d by failingto file a c opy of the notice of appeal with the appellate court clerk

. The pending decision by the Tennessee Supreme Court will provide authoritative guidance for the cas es that are cur rently pend

ing on appeal.

The Cobb v. Beier

decision is not

the first time this c ourt has ad dressed the consequences of failin g to file a c opy of a notice of appeal with the appellate court clerk. The Middle Section addressedthis issue in 1984 in the c ontext of th e first reincar nation of th e requirement and he ld that fai ling to file a c opy of the notice of appeal with the clerk of the appellate court was not fatal to an appeal, as long
as a timely notice of appeal had been filed with the cler k of t he trial c ourt and served on oppo sing cou nsel. Holder v. Holder, App. No. 84-1 17-II, s lip op. at 4 (Tenn. Ct. App. Sept. 5, 1984) (no T enn . R. App . P. 11 application filed). Recently, we c ited Holder v. Holder as a basis for pretermitting the issue raised by the failure to file a notice of appeal with the clerk of the appel l ate court
. VentureExpress, Inc. v. Ra eford Tru cking Co., App. No . 01A01-9 608-CH-0 0352, 1997 WL 718 13, at *1-2 (Tenn. Ct. App. Feb . 21, 1997)

.-5- The timely fi ling of

a notice of

appeal in a civil ca se is, w ithout questi on, mandatory and juris diction al. First Nat’ l Bank v. Goss, 91 2 S.W.2 d 147, 148 (Tenn. Ct. App. 1995). T enn. R. App. P. 4(a)’s r equir ement tha

t the notice

of appeal be filed within thirty days applies only to notices filed wi th the cler k of the trial court. Neith er Tenn. R. App. P. 4 n or Tenn. R. App. P. 5 r equires th at the notice of appeal be filed w ith the clerk of the appellate court within any particular time. In the absence of such a req uirement, we are reluctant to dismiss an appeal simply because

an appella

nt delayed filing a

notice of a

ppeal wit h the cler k of the appellate court.

Withdeferen ce to our E astern Se ction colle agues, we adhere to our earlier Holder v. Holder de cision. Mr. Dra per prepa red and fi led a time ly notice of appeal w ith the cle

rk of the t rial cour t and serve d acopy of this notice of appeal
on his adversaries. The r ecord c ontains no colorable proof that Messrs. Reaver andTacey were actually prejudiced by Mr. Draper’s oversigh t. According ly, we invoke Tenn. R . App. P. 2 to relieve Mr. Draper from the requir

ement of f

iling a timely no tice of app eal with the clerk of the appellate court.

III.

This appeal inv olves a com mon occurr

enc e - a person

injured dur

ing the
courseof employm

ent by the negligence

of third-p arties. Dependin g on the fac ts, these circumstances ma

y give rise

to severa l distinct c laims aga

inst thenegligent third-par ties. The injur

ed employe e may see

k to recove

r for his personal injuries and for the

damage to his property. The employer of the injuredemployee may have a cla

im for dam age to its pe

rsonal prop erty and may also have a derivativ e claim arising out

of its empl oyee’s pe

rsona l injur ies. This derivative claim, commonly referr

ed to as a s ubrogation c laim, is not necessa rily as bro ad as th e employee’s personal i njury clai m but rathe r is limited to the worker’s compensat

ion benefits p aid to the

employee. Tenn. C ode Ann. § 50-6-112(c)(1); Cross v. Pan Am World Se rvs., Inc., 7 4 9 S.W.2d 29, 30 (Tenn. 1987 ), rev’d on other grounds , 867 S.W .2d 312, 31 5 (Tenn . 1993); Aetna Cas. & Sur. Co. v. Gilreath, 625 S.W.2d 26 9, 273 (Tenn . 1981).-6- Differ ent statutes of

limitation s apply to each of t hese clai ms. The employee must

file his or her perso nal injury c laims wit hin one year

from the date of injury. T enn. Code

Ann. § 50

- 6-112(d)( 1) (1991); Tenn. C ode Ann. § 28-3- 104(a )(1) (Supp. 19 96); Craig v. R.R. Str eet & Co., 794 S.W. 2d 351, 357-5 8 (Tenn. Ct. App. 1990) . The employee an d the employ er must file their propert

y damageclaims within three years from the date that t heir prope

rty was da

maged. Tenn. Code Ann. § 28-3-105(1) (Supp. 1996). Finally, if an employee does not file apers onal injury claim, t he employe

r must fil e its subrog ation clai m within eighteen months fro m the date of theemployee’ s injury. Tenn. C ode Ann. § 50-6- 112(d)(2) ; Craig v. R .R. St reet & Co. , 794 S.W .2d at 358.

A normal statute of limitat io ns bars only the reme dy, not the substantive right, Watts v. Putnam County, 525 S.W. 2d 488, 492 ( Tenn. 197 5); P acif ic EasternCorp. v. Gulf Li

fe Holding Co., 902 S.W. 2d 946, 955 ( Tenn. C t. App. 1995), but not so with an employee’s claims agai nst th ird-parties for personal injuries sustained du

ring the course

of employm

ent. Em ployees wh o fail to fi le their personal injury action within one year from thei r injury not only lose t heir remedybut also their substant ive claim . By operation of Tenn. C ode Ann. § 50-6- 112(d)(2), these personal injury claims are assigned to the employer one year after the emplo yee’s inju ry. Craig v. R.R. Str eet & Co., 794 S.W. 2d at 358.

IV. D RAPER ’ S P ERSONAL I NJURY AND P ROPERTY D AMAGE C LAIMS

We turn our attention first to Mr . Draper’s perso nal injury a nd property dam age claims. The trial court dismissed these claims on the ground that they
were time-barred because Mr. Dr a per file d suit more than one ye ar afte

r he sustained the injuries. It

is undisputed that Mr. Draper was injur ed on October 22, 1994 and that he filed suit on November 7, 1995. By the time Mr. Draper filed suit, not only had th e one-yea r statute of limitat

ions expire d, but hi s p ersonal inju ry claims ha

d also passe d by operati on of law t o Pig Impr

ov ement
. Ac cordingly, the trial court was undoubtedly correct when it dismissed Mr. Draper’s pers onal inj ury claims

.-7- Mr. Draper’s property damage clai ms d o not meet t he same f ate beca use they are go verned by th e three- year, a s opposed to th e one-yea r, statut e of limitation s. Mr. Draper ’s suit was we ll within t

he three-ye ar limita

tions period , andthus it is not ti me -barred. In addition, these claims could not have been assigned to Pig Impr

ovement be cause Tenn. Code A nn. § 50-6- 112(d)(2) does not apply to propert

y damage c laims. Accordingly , we hold that the tri al court correct ly dismissed Mr. Draper’s personal injury cla ims but err

ed by dismiss ing his prop erty damage claims.

V.

P IG I MPROVEMENT ’ S S UBROGATION C LAIMS

We now turn toPig Imp rovement’ s subrogatio n claims. The mal adroit efforts to assert these clai ms do not com ply with the

worker’ s compensa

tion statuteor the rul es of civil procedur e. Nonetheless, the trial court should have considered the substance rat her than th e form of the motion t

o amend the complaint

and should have permitted Pig Improveme nt to intervene in this case rather than requiring it to file a s eparate sui t.

The worker’s compen sation statutes pe rmit empl oyers to as sert their subrogation claims in t

wo ways. They may

proceed i n their ow n name or i n the
name of their employee. Tenn. Code Ann. § 50-6-112(d )(2). If they decide to proceed in their o wn name, th ey may eit her inter vene in the ir employe e’s law suit,
or they may fi le a separate suit in t heir own nam e. Craig v. R.R. Street & Co., 794 S.W.2 d at 358. F or

reasons not apparent in the re cord, Pi g Improvem ent did not file a Tenn. R. Civ. P. 24.01 motion to intervene as of right. Instead, Mr. Draper filed a motion to amend his complaint to add Pig Improvement as a plaintiff.

The motion to am

end was a poor proce dural choic e because the trial court had already det er mined that Mr. Draper’s personal injury claims against Mr. Reaver were time-barred and because what remained of Mr. Draper ’s personal injury claims had already passed by ope

ration of l aw to Pig Improvem ent. Nonetheless, the trial court should have constr

ued the moti on to amend in light of its substance rat her than its form. Bemis C o. v. H ines, 585 S.W. 2d 574, 576-8-

(Tenn. 1979); Pickard v. Ferrell , 45 Tenn. App. 460, 471, 325 S. W.2d 288, 292- 93 (1959). Since the same lawy er repr esented bot

h Mr. Draper and P

ig I mproveme nt, the trial

court should

have trea

ted the mot

ion to amend

the complaint a s a motion tointervene and should

have permitted Pig Impro vement to assert i ts subro gation cl aim in the p roceeding

.
VI.

We affi rm the summary dismissal of Mr. Draper’s personal injury claims but vacate the dismissal of his property damage claims. We also vaca te the denial of the mo ti on to amend a

nd remand t

he case tothe trial

court wit h directio ns to enter an order permi tting Pig Improvem ent to inter

vene in this case purs uant to Tenn. Code Ann. § 50-6-112( c) to pursu e its subrog ation right s. We ta x the costs of this appea

l in equal pr

oportions to P aul Glen Draper an d his surety and to Bryan Essary and Richa

rd Alan T acey, Jr . for w hich exec ution, if necessary, may issue.

_________________ _______ __ __ WILLIAM C. KOCH, JR., JUDGE CONCUR:

_________________

_______________ HENRY F. TODD, P.J., M.S.

_________________

_______________ SAMUEL L. LEWIS, JUDGE