FILED

April 11, 1997

Cecil W. Crowson

Appellate Court Clerk

IN THE COURT OF APPEALS OF TENNESSEE

MIDDLE SECTION AT NASHVILLE

PAUL GLEN DRAPER, )

)

Plaintiff/Appellant, )

) Davidson Circuit

) No. 95C-3755

VS. )

) Appeal No.

) 01A01-9609-CV-00394

CURT REAVER and )

RICHARD ALAN TACEY, JR., )

)

Defendants/Appellees. )

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., JUDGE
1The purpose of the amendment was obviously to enable Pig Improvement to assert its

subrogation rights under Tenn. Code Ann. § 50-6-112(c). In an affidavit supporting the motion

(continued...)

-2-

O P I N I O N

This appeal stems from a three-vehicle collision on I-65 in Davidson

County. One driver filed suit in the Circuit Court for Davidson County against his

employer and the owners of the other two vehicles. The plaintiff later voluntarily

dismissed his claims against his employer and moved to amend his complaint to

add his employer as a plaintiff. The trial court denied the motion and granted

summary judgments dismissing the plaintiff’s claims against the owners of the

other vehicles. The plaintiff asserts on this appeal that the trial court should have

permitted him to amend his complaint and that the summary judgments would

have been inappropriate had the trial court done so. While the trial court properly

granted the summary judgments concerning the plaintiff’s personal injury claims,

it erred by dismissing the plaintiff’s property damage claims. In order to avoid a

multiplicity of suits, the trial court should have treated the plaintiff’s motion to

amend his complaint as a motion by the plaintiff’s employer to intervene as of

right pursuant to Tenn. Code Ann. § 50-6-112(c) (1991). Accordingly, we vacate

the summary judgments in part and remand the case for further proceedings.

I.

On October 22, 1994, Paul Draper was involved in a three-vehicle collision

on I-65 in Nashville while attempting to assist a stranded pedestrian. On

November 7, 1995, he filed suit in the Circuit Court for Davidson County against

his employer, Pig Improvement Company, and the owners of the other two

vehicles involved in the collision, Richard Alan Tacey, Jr. and Curt Reaver,

seeking to recover for personal injury and damage to his personal property. 

On February 8, 1996, Mr. Reaver moved for summary judgment asserting

that Mr. Draper’s claims were time-barred. While this motion was pending, Mr.

Draper voluntarily dismissed his claims against Pig Improvement and moved to

amend his complaint to add Pig Improvement as a plaintiff.1 The trial court
1

(...continued)

to amend, Mr. Draper’s lawyer explained that he had been retained to represent Pig Improvement

“for the use and benefit of Continental Casualty Company.” In addition to filing a motion to

amend Mr. Draper’s complaint, the lawyer also prepared and filed a separate suit wherein Pig

Improvement asserted its subrogation claims against Messrs. Reaver and Tacey. The later

dismissal of that suit is the subject of another appeal.

-3-

granted Mr. Reaver’s motion for summary judgment before it heard Mr. Draper’s

motion to amend. Thereafter, Mr. Tacey filed a motion for summary judgment

also asserting that Mr. Draper’s claims against him were time-barred. The trial

court consolidated both motions for hearing, and on June 20, 1996, entered an

order granting Mr. Tacey’s motion for summary judgment and denying Mr.

Draper’s motion to amend. This appeal followed.

II.

We must first address a threshold question concerning the viability of this

appeal. After Mr. Draper filed his brief, Messrs. Reaver and Tacey, relying on the

Eastern Section’s opinion in Cobb v. Beier, App. No. 03A01-9602-CV-00051,

1996 WL 375293 (Tenn. Ct. App. July 3, 1996), perm. app. granted (Tenn. Oct.

28, 1996), moved to dismiss the appeal because Mr. Draper had failed to file a

copy of his notice of appeal with the clerk of the appellate court in accordance

with Tenn. R. App. P. 5(a). We took these motions under advisement in October

1996 in anticipation that the Tennessee Supreme Court would address this

question. Rather than delaying the disposition of this appeal, we have elected to

proceed without the high court’s guidance.

Throughout their eighteen-year life span, the Tennessee Rules of Appellate

Procedure have not consistently required appellants to file a copy of the notice of

appeal with the appellate court clerk. When the rules first became effective in

1979, Tenn. R. App. P. 5(a) required the appellant in a civil action to “serve a

copy of the notice of appeal . . . on the clerk of the appellate court designated in

the notice of appeal.” The Tennessee Supreme Court removed the requirement in

1984 because it “accomplished no vital purpose, but instead resulted in a surplus

of notices where the appeal was abandoned because of settlement or otherwise.”

Tenn. R. App. P. 5, cmt. to 1984 Amendment. In 1991, the Tennessee Supreme
-4-

Court restored the language to Tenn. R. App. P. 5(a) that it had removed seven

years earlier. 

The 1991 amendment to Tenn. R. App. P. 5(a) had little noticeable effect

on practice before the intermediate appellate courts. In fact, it passed largely

without notice until the Cobb v. Beier decision. Within weeks after Cobb v. Beier,

this court began to receive a steady stream of motions to dismiss appeals for

failure to comply with the reincarnated requirement that the notice of appeal be

filed with the clerk of the appellate court in addition to the trial court clerk. None

of these motions contained a colorable showing of prejudice.

The Tennessee Supreme Court decided to review Cobb v. Beier and on

January 23, 1997, entered an order amending Tenn. R. App. P. 5(a) to shift the

obligation of filing the notice of appeal with the clerk of the appellate court from

the appellant to the clerk of the trial court. The proposed advisory commission

comment notes that “[s]ervice of a copy [of the notice of appeal] on the appellate

clerk is not jurisdictional.” This proposed rule, if adopted, effectively eliminates

prospective difficulties caused by failing to file a copy of the notice of appeal with

the appellate court clerk. The pending decision by the Tennessee Supreme Court

will provide authoritative guidance for the cases that are currently pending on

appeal.

The Cobb v. Beier decision is not the first time this court has addressed the

consequences of failing to file a copy of a notice of appeal with the appellate court

clerk. The Middle Section addressed this issue in 1984 in the context of the first

reincarnation of the requirement and held that failing to file a copy 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 clerk of the trial court and

served on opposing counsel. Holder v. Holder, App. No. 84-117-II, slip op. at 4

(Tenn. Ct. App. Sept. 5, 1984) (no Tenn. R. App. P. 11 application filed).

Recently, we cited 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 appellate court.

Venture Express, Inc. v. Raeford Trucking Co., App. No. 01A01-9608-CH-00352,

1997 WL 71813, at *1-2 (Tenn. Ct. App. Feb. 21, 1997). 
-5-

The timely filing of a notice of appeal in a civil case is, without question,

mandatory and jurisdictional. First Nat’l Bank v. Goss, 912 S.W.2d 147, 148

(Tenn. Ct. App. 1995). Tenn. R. App. P. 4(a)’s requirement that the notice of

appeal be filed within thirty days applies only to notices filed with the clerk of the

trial court. Neither Tenn. R. App. P. 4 nor Tenn. R. App. P. 5 requires that the

notice of appeal be filed with the clerk of the appellate court within any particular

time. In the absence of such a requirement, we are reluctant to dismiss an appeal

simply because an appellant delayed filing a notice of appeal with the clerk of the

appellate court.

With deference to our Eastern Section colleagues, we adhere to our earlier

Holder v. Holder decision. Mr. Draper prepared and filed a timely notice of

appeal with the clerk of the trial court and served a copy of this notice of appeal

on his adversaries. The record contains no colorable proof that Messrs. Reaver

and Tacey were actually prejudiced by Mr. Draper’s oversight. Accordingly, we

invoke Tenn. R. App. P. 2 to relieve Mr. Draper from the requirement of filing a

timely notice of appeal with the clerk of the appellate court. 

III.

This appeal involves a common occurrence - a person injured during the

course of employment by the negligence of third-parties. Depending on the facts,

these circumstances may give rise to several distinct claims against the negligent

third-parties. The injured employee may seek to recover for his personal injuries

and for the damage to his property. The employer of the injured employee may

have a claim for damage to its personal property and may also have a derivative

claim arising out of its employee’s personal injuries. This derivative claim,

commonly referred to as a subrogation claim, is not necessarily as broad as the

employee’s personal injury claim but rather is limited to the worker’s

compensation benefits paid to the employee. Tenn. Code Ann. § 50-6-112(c)(1);

Cross v. Pan Am World Servs., Inc., 749 S.W.2d 29, 30 (Tenn. 1987), rev’d on

other grounds, 867 S.W.2d 312, 315 (Tenn. 1993); Aetna Cas. & Sur. Co. v.

Gilreath, 625 S.W.2d 269, 273 (Tenn. 1981). 
-6-

Different statutes of limitations apply to each of these claims. The

employee must file his or her personal injury claims within one year from the date

of injury. Tenn. Code Ann. § 50-6-112(d)(1) (1991); Tenn. Code Ann. § 28-3-

104(a)(1) (Supp. 1996); Craig v. R.R. Street & Co., 794 S.W.2d 351, 357-58

(Tenn. Ct. App. 1990). The employee and the employer must file their property

damage claims within three years from the date that their property was damaged.

Tenn. Code Ann. § 28-3-105(1) (Supp. 1996). Finally, if an employee does not

file a personal injury claim, the employer must file its subrogation claim within

eighteen months from the date of the employee’s injury. Tenn. Code Ann. § 50-6-

112(d)(2); Craig v. R.R. Street & Co., 794 S.W.2d at 358.

A normal statute of limitations bars only the remedy, not the substantive

right, Watts v. Putnam County, 525 S.W.2d 488, 492 (Tenn. 1975); Pacific

Eastern Corp. v. Gulf Life Holding Co., 902 S.W.2d 946, 955 (Tenn. Ct. App.

1995), but not so with an employee’s claims against third-parties for personal

injuries sustained during the course of employment. Employees who fail to file

their personal injury action within one year from their injury not only lose their

remedy but also their substantive claim. By operation of Tenn. Code Ann. § 50-6-

112(d)(2), these personal injury claims are assigned to the employer one year after

the employee’s injury. Craig v. R.R. Street & Co., 794 S.W.2d at 358.

IV.

DRAPER’S PERSONAL INJURY AND PROPERTY DAMAGE CLAIMS

We turn our attention first to Mr. Draper’s personal injury and property

damage claims. The trial court dismissed these claims on the ground that they

were time-barred because Mr. Draper filed suit more than one year after he

sustained the injuries. It is undisputed that Mr. Draper was injured on October 22,

1994 and that he filed suit on November 7, 1995. By the time Mr. Draper filed

suit, not only had the one-year statute of limitations expired, but his personal

injury claims had also passed by operation of law to Pig Improvement.

Accordingly, the trial court was undoubtedly correct when it dismissed Mr.

Draper’s personal injury claims. 
-7-

Mr. Draper’s property damage claims do not meet the same fate because

they are governed by the three-year, as opposed to the one-year, statute of

limitations. Mr. Draper’s suit was well within the three-year limitations period,

and thus it is not time-barred. In addition, these claims could not have been

assigned to Pig Improvement because Tenn. Code Ann. § 50-6-112(d)(2) does not

apply to property damage claims. Accordingly, we hold that the trial court

correctly dismissed Mr. Draper’s personal injury claims but erred by dismissing

his property damage claims. 

V.

PIG IMPROVEMENT’S SUBROGATION CLAIMS

We now turn to Pig Improvement’s subrogation claims. The maladroit

efforts to assert these claims do not comply with the worker’s compensation

statute or the rules of civil procedure. Nonetheless, the trial court should have

considered the substance rather than the form of the motion to amend the

complaint and should have permitted Pig Improvement to intervene in this case

rather than requiring it to file a separate suit. 

The worker’s compensation statutes permit employers to assert their

subrogation claims in two ways. They may proceed in their own name or in the

name of their employee. Tenn. Code Ann. § 50-6-112(d)(2). If they decide to

proceed in their own name, they may either intervene in their employee’s lawsuit,

or they may file a separate suit in their own name. Craig v. R.R. Street & Co., 794

S.W.2d at 358. For reasons not apparent in the record, Pig Improvement 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 amend was a poor procedural choice because the trial court

had already determined 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 operation of law to Pig Improvement.

Nonetheless, the trial court should have construed the motion to amend in light

of its substance rather than its form. Bemis Co. v. Hines, 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 lawyer represented both Mr. Draper and Pig

Improvement, the trial court should have treated the motion to amend the

complaint as a motion to intervene and should have permitted Pig Improvement

to assert its subrogation claim in the proceeding. 

VI.

We affirm the summary dismissal of Mr. Draper’s personal injury claims

but vacate the dismissal of his property damage claims. We also vacate the denial

of the motion to amend and remand the case to the trial court with directions to

enter an order permitting Pig Improvement to intervene in this case pursuant to

Tenn. Code Ann. § 50-6-112(c) to pursue its subrogation rights. We tax the costs

of this appeal in equal proportions to Paul Glen Draper and his surety and to

Bryan Essary and Richard Alan Tacey, Jr. for which execution, if necessary, may

issue.

____________________________

WILLIAM C. KOCH, JR., JUDGE

CONCUR:

________________________________

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

________________________________

SAMUEL L. LEWIS, JUDGE