# FILED
December 16, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF APPEALS OF TENNESSEE,

AT JACKSON

_______________________________________________________ ) CASSANDRA LYNN LIPSCOMB , ) Shelby County Circuit Court ) No. 81763 & 85203 T.D. Plaintiff/Appella

nt. ) ) VS. ) C.A. No. 02A01-9711-CV-00293 ) JOHN DOE , ) ) Defendant/Appellee. ) ) and ) ) CASSANDRA LYNN LIPSCOMB , ) ) Plaintiff/Appella

nt. ) ) VS. ) ) COREY DYSON, JAMES LOGAN, ) And ANTONIO CHANEY , ) ) Defendants. )

______________________________________________________________________________ From the Circuit Co

urt of Shelby

County at Memp

his. Honorable D’Army Bailey, Judge
A. Wilson Wages , Millington, Tennessee Attorney fo

r Plaintiff/Appell

ant.
Fred P. Wilson , STEWART, WILKINSON AND WIL SON LAW FIRM, Memphis, Tennessee Attorney for Defendant/Appellee.

OPINION FIL

ED: AFFIRMED AND

REMANDED FARMER, J. HIGHERS, J. : (Concurs) LILLARD, J. : (Concurs)1 The record is some what confusing r

egarding the

date on which the e

vents giving ris

e to Lipscomb’s co

mplaint occurre

d. Items filed

in the cause by

Lipscomb state

that these events took place on September 24, 1996. Other items in the record, however, suggest that they occurred on September 24, 1995. When questioned about this inconsistency during oral argument, counsel for Lipscomb explained that an error had occurre d when drafting items filed by Lipscomb and conceded that the actual da te of the incident was September 24, 1995.
2 Tennessee’s uni

nsured motorist sta

tute generally

does not permit a pl

aintiff to maintain an action directly against the plaintiff’s insurance provider. See Glover v. Te nnessee Farmers Mut. Ins. Co. , 468 S.W.2d 727, 730 (Tenn. 1971). But see Brewer v. Richardson , 893 S.W.2d 935, 938 (Tenn. 199

5)(allowing suc

h an action when p

rocess issued to th

e uninsured motori

st was returned uns

erved). Rather

, the plaintiff must

institute a suit ag

ainst the uninsure

d motorist and serve the insurance company with notice of the action. See Tenn. Code Ann. § 56-7-1206(a) (1994). If th

e identity of

the uninsured motor

ist is unknown, the sta

tute allows the pla

intiff to Plaintiff Cassandra Lynn Lipscomb a ppeals the trial court’s denial of her motion for leave to ame nd as well as the tr ial court’s dismissa

l of all of her cla

ims. For the reas

ons set forth below, we affir

m the ruling of the

trial court.

Factual and Procedura

l History

While driving her automobile on the evening of September 24, 1995, 1 Lipscomb was chased and repeatedly

struck from behind by another vehicle. The pursuing vehicle then pulled up beside Lipscomb’s vehicle and one of its occupants pointed a gunat Lipscomb. The gunman then shotLipscomb, breaking the window of her vehicle. OnOctober 7, 1995, a n article descr

ibing this incident and accompanied by

a photograph

of Lipscomb ap

peared in a loca

l newspaper. The

article listed the names and addresses of three men who had been arrested and charged in

connection with the attack. Lipscomb reported the existence of this article to Amerisure Companies (Amerisure), her automobile

insurance carrier, on November 10, 1995 and faxed a copy of the article to Amerisure on November 13, 1995.

On September 24, 1996, Lipscomb filed a complaint seeking damages for injuries sustained in connection with the incident of September 24, 1995. The complai nt d id not name as
a defendant any

of the three men l

isted in the newspa

per article that

Lipscomb

had f axed to Amerisure. Rather, the complaint was filed using the “John Doe” procedure of section 56-7-1206(b) of the Tennessee Code Annotated , which allows a plaintiff to seek relief from his or

her insurance provider even though the identity of the uninsured motorist who caused t he plai ntiff’s injuries is unknown. See Tenn. Code Ann. § 56-7-1206(b) (1994). 2 On December 5, 1996, Amerisure filedsimply name “John Doe” as a defendant. See Tenn. Code Ann. § 56-7-1206(b) (1994). An

insurance provider that has been served with process may, in its discretion, file plea dings and otherwise participate in the proceedings in an attempt to defend the uninsured motorist. See Harvey v. Birchfie

ld , 535 S.W.2d 334, 336-3 7 (Tenn. 1976); Witter v. Nesbit , 878 S.W.2d 116, 119 (Tenn. App. 1993); Tenn. Code Ann. § 56-7-1206(a) (1994). a motion to dismiss Lipscomb’s “John Doe” complaint. On December 23, 1996, Lipscomb filed a motion seeking leave to amend her c omplaint to add James Logan, Antonio Chaney, and Cory Dyson, the three men nam ed in the newspape

r article, as def

endants. Thereafter on February 13, 1997, she fileda separate complaint agains t Logan, Chaney, and Dyson. Byconsent, the two actions
were c o nsolidated. Amerisure then filed a motion to dismiss Lipscomb’s claims against Logan, Cha ney, and Dyson. The trial court heard all pending motions and on October 31, 1997 entered an order denying Lipscomb’s motion to amend and granting Amerisure’s motion to di smiss Li pscomb’s “John Doe ” complai nt. On that same day, the trial court also entered an order dismissing Lipscomb’s complaint against Logan, Chaney , and Dyson. This appeal followed.

The is sues raised on appeal are (1) whether the trial court erred in deny ing Lipscomb’s motion to amend her “John Doe” complai

nt and (2) whethe

r the trial court e

rred in granting Amerisure’s motions to dismiss both Lipscomb’s “John Doe” complaint and her separate complaint against Log

an, Chaney, and Dyson.

Because these are questions of law, our review of the trial court’s ruling i

s de novo with n o p resumption of correctness. See Owens v. Truckstops of America , 915 S.W.2d 420, 424 (Tenn. 1996); Ridings v. Ralph M. Parsons Co. , 914 S.W.2d 79, 80 (Tenn. 1996); T.R.A.P. 13(d).
Lipscomb’s Motion to Amend
Lipscomb fir st contends that the trial court should have allowed her to amend her “John Doe” complaint and name additional defendants un der sect ion 20-1-119 of the Tennessee Code Annotated which provides in p ertinent part as f

ollows:
(a) In civil actions wher

e comparative f

ault is or becomes an issue, if a defen

dant 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 statu te of limitations, alleges in an answer or amended answe r to the original or amended complaint that a person not a party to the suit caused or contributedto the injury or damage for which the plaintiff seeks reco very, and if the plaintiff’s cause or cause s of action aga

inst such person wo

uldbe barred by any applicable statute of limitations butfor the operation of this sect ion , th e pl ain tif f ma y, within ninety (90) days of the filing of the first answer or f

irst amended answ

er alleging su

ch person’s fau

lt, either: (1) Ame nd the complaint to add such person as a defendant pursuant to Rule 15 of the Tennessee Rules of Civil Pro c edure and cause process to be issued for that person; or (2) Institute a separate action ag ainst that person by fili ng a summons and complaint. If the plaintiff elects

to proceed under

this section by filing a

separate action, the complaint so filed shall not be considered

an “originalcomplaint initiating the suit” or “an amended complaint” for purposes of this subsection. (b) A cause of action brought within ninety (90) days pursuant to subsection (a) sh

all not be barred

by any statute of limi

tati ons. This section shall not extend an y applicable statute of repose, nor shallthis section permit

the plaintiff to ma

intain an action a

gainst a person when such an action is barred by an applica bl e statute of repose.

Tenn. Code Ann. § 20-1-119 (a), (b) (1994). Section 20-1-11 9 was enacted in response to the adoption of comparative f ault in Tennessee. See Browder v. Morri s , 975 S.W.2d 308, 310 (Tenn. 1998). The concern of t

he legislators w

as that a defendant might allege in his or her answer that a previously

unknown party was wholly or partly responsible for the p lainti ff’s injuries. If such an allegationwas made after the running of the statute of limitations, the plaintiff

would be unable to
recover from the newly named party. See Whittlesey v. Co le , 142 F.3d 340, 345 (6th Cir. 1998). Section 20-1-119 allows a plaintiff in this situ

ation toamend hi s or her complaint and add as a defendant the party a

lleged by the original def

endant to have caused or c

ontributed to

the plaintiff’s inj ury, even if the statute of limitations applicable to the plaintiff’s caus

e of action aga

inst the newly added defendant has expired. See Owens , 915 S.W.2d at 427.

The facts of Owens v. Truckstops o f Americ a , 915 S.W .2d 420 (Tenn. 1996), illustrate the type of s

ituation to which se

ction 20-1-119 wa

s intended to apply

. In Owens , a restaurant patron sustained personal injuries when the stool on which he was sitting broke, causing him to fall to the floor. See id. at 423. The patron filed a complaint a

gainst the resta

urant, alleging negligent maintenance of

the stool and failure to warn of the stool’s dangerous condition. See id. In its amended answer, the restaurant alleged that the acts of t he co mpa ny t hat designed and manufactured

the stool and the company from whom it purcha

sed the stool cause

d or contributed to the patron’s injuries
. See id. The patron then moved to amend the original com

plaint to add theseparties as defe ndants pursuant to

section 20-1-119. See id. The court discussed section 20-1-119
as if it would normally

apply to fac

ts such as those with

which it was presented. See id. at 427. The court noted, however, that the applicab le limitations perio

d had expired prior

to the effective

date of the statute and held that section 20-1-119 could not be applied retroactively. See id.

In Soper v. Wal-Mart

Stores, Inc. , 923 F. Supp. 1032 (M.D. Tenn. 1996), a federal dis trict court applied Tennessee law to facts similar to those presented in Owens . Sop er filed a complaint against Wal-Mart, alleging that he hadsustained an eye injury resulting f rom Wal-Mart’s negligent maintenance of a bug

spraying device located in its store. See id. at 1035. On March 10, 1995, Wal-Mart filed an answer to the complaint, asserting that Soper’s injur ies were proximate

ly caused by the

negligence and/or intentional conduct of a third party. See id. In a letter dated May 26, 1995, Wal-Mart dis

close d that the party identified in its answer was Orkin Exterminating Company (Orkin), the manufacturer of the bug spraying device. See id. On October 25, 1995, Soper filed an amended complaint, naming Orkin as an additional defendant. See id. The court granted
a motion todismiss t he claim agai nst Orkin, concludin g that, alth ough section 20-1-119 operated to revive Soper’s claim against Orkin for a period of ninety day s, the ninety da

y revival period had expired prior to the filing of Soper’s amended complaint. See id.

The facts of the insta

nt case are distin

guishable from those

presented in Owens and Soper
. The defendants in those cases alleged that parties previous

ly unknown to the plaintiffs were at least partially at fault. In the present case, however, Amerisure’s answer doe s not allege that an unknown third party

caused or contr

ibuted to Lipsc

omb’s injuries. Rat

her, it alleged that L

ipscomb’s injuries were caused by parties known to her and that, therefor e, she improperly employed the “John Doe” procedure. This distinction was recognized in the recent case of Whittlesey v. Cole , 142 F.3d 340 (6th Cir. 1998). The court in Whittlesey stated as follows:

[W]e may assume

that one of the concerns was to prevent a defendant from naming and attributing fault to a previou sly unk nown responsible

party in its answer when thetime for the plaintiff to bring t he new ly n amed party into the suit was insufficient or had passed. This concern, of course, arises only where t he p laintiff has been unaware, until the defendant’s answer, of the fault of a noth er individual. Indeed, a review of Tenne ssee case law su

ggests that § 20-1-119 is imp licated only where the defendant’s answer apprise s the plaintiff for the first time of a responsible party. . . . It is, thus ,3 During the recorded telephone conversation, Lipscomb answere d the questions of the Amerisure employ

ee as follows: Q. Okay. You do

n’t have a copy

of that report on t

hat incident? A. Ah, no, I don’t

have a copy

of the actual poli

ce report, no. I

would like to. I guess I need to get one. I do have a little information on those guys , if you would

like their, I t

hink I have the

ir names. But, I mean there

[sic] all in jail. Q. Well, the more you can give us, the quicker we can g et the Memphis Police to fin

d the report on tha

t. A. All right. Le

t me see here. I

know they se

nt me something on i

t with docket numbers and stuff. Anthono Chaney, Corey Dyson . . . Q. D I S O N? A. D Y S O N. Q. That’s Corey, C O R E Y? A. Ah ha, and James Logan. Q. Oka y. A. And their arrest number is 95276061. Q. Oka y. A. Let me see if I have any thing else. I don’t think I have any thing else on them. Q. Oka y. A. It gave their addresses in the newspaper . . . Q. Oh, real ly. A. Would you like t

hat? Q. Yeah. A. I mean their [s

ic] not there thoug

h. They are

in jail. I can g

ive it to you. Q. Okay. Could you just get a photocopy of that article for me? A. Yeah, I coul

d do that. plain that § 20-1- 119 was not intended to apply to a plaintiff like Whittleseywho, long before the defendant’s answer to the com plaint, hadknowledge that a third party may be at fault for the complained of injuries.

Id. at 345 (cit ing Soper v. Wal-Mart Stores, Inc. , 923 F. Supp. 1032, 1038 (M.D.Tenn.1996); Owens v. Truckstops of America , 915 S.W.2d 420 (Tenn.1996)).

We agree with the Whittlesey court that section 20-1-119 is applicable only when the plaintiff is unaware of the

fault of the third p

arty at the

time that the p laintiff filed his or her complaint. In the instant case, Lipscomb knew the names and addresses of three men who had been arrested and faced c rimin al cha rges i n conn ectio n with the in ciden t resu ltin g in he r inju ries. In November

of 1995, ten months before Lipscomb filed her original complaint, Lipscomb admitted to an employee of

Amerisure that she knew the names and addresses of Logan, Chaney , and Dyson. 3 Three days later

, she faxed to Amer

isure a copy

of a newsp aper arti cle containing t his same information. Lipscomb contends on appeal that she lacked knowledge of these parties be cause she4 Counsel for Lipscomb essentially conceded this point in comments made to the trial

judge regarding why L

ogan, Chaney, and Dy

son were not named as defendants in the original complaint. He expla

ined as follows: So, I don’t want to mislead the court by say ing “I didn’t know those three [guys’] names. We didn’t know those three [guys’] names.” We knew from the outset before this lawsuit was filed, that those three guys were in the car apparently . I honestly don’t know. My client doesn’t know who pulled the trigger. was unable to identify which of the three men was driving the vehicle. Lipscomb stated that she believedthat Chaney

was driving the v

ehic le but al so recalled that Dyson admitted during the criminal proceedings that he was the driver. We conclude that, prior to the filing of Lipscomb’s complaint, she knew that Lo gan, Chaney , and Dyson w

ere potential re

sponsible parties
. 4 We thereforeconclude, consistent with the court’s holdi ng in Whi ttlesey , that section 20-1 -119 is inapplicable to the case at bar.

Lipscomb also contends that, irrespective of section 20-1-119, the trial court should have allowed h er to amend h er complaint under Rule 15.03 of the Tennessee Rules of Civil Procedure . Rule 15.03 provide s as follows:

Whenever

the claim or defense asserted in amended plead in gs arose out of the conduct

, transaction, or

occurrence se

t f orth o r attemptedto be set forth in the original pleadin g, the amendment relates back to the date o f the original pl

e ading. An amendment changingthe part y or the naming of t he party by

or against whom a claim is asserted relates back if the foregoi ng provision is satisfied and if, within the period provided by law for commencingan action or within 120 days after commencement of the action, the party to be brough t in by amendment (1) has received such notice of the institut ion of th e action that the p arty will not

be prejudiced in maintaining a defense on the merits, a n d (2) knew or should have known that, but for a mist ake concerning the identity of the proper part y, th e act ion wou ld h ave b een b rou ght a gain st t he p art y.

T.R.C.P. 15.03.

Under Rule 15.03, an amended complaint that names a new defendant relates back to the original complaint only if three requirements are satisfied. First, the claim must arise out of the same facts underlying the claim set forth in th e original compl

aint. Additionally

, the newly addeddefendant

must be given notice of the proceedings before the running of the applicable statu

te5 The notice provis ions of Tennessee

Rule 15.03 and Fed

eral Rule 15(c) a

re substantially similar. Federa

l Rule 15(c) provid

es as follows: An amendment of a pleading relates back to the date of the original pleading w hen (1) relation back is permitted by the law that provides the statute of limitations applicable to the action, or (2) the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, or (3) the amendmen

t changes the pa

rty or the na

ming of the party

against whom a claim is asserted if the foregoing provision (2) is satisfied and, within the period provided b

y Rule 4(m) f

or service of the

summons and complai

nt, the party to be brought in by amendment (A) has received such notice of the institution of the action that the party will not be prejudiced in maintaining a defense on the merits, and (B) knew or should have known that, but for a mistake concerning the ide nti ty of the pro per p art y, th e act ion wou ld h ave b een b rou ght a gain st t he p art y. F.R.C.P. 15(c). of limitations or

within 120 days after the filing of the original complaint. Finally , the plaintiff may notname a new defe

ndant unless,

within the applicable limitations period or within 120 days after the filing of the original complaint, the newly added defendant knows or should have known t

hat, but for the plaintif

f’s mistake in iden

tifying the

proper party

, he or she would

have been

named in the original complaint. Our analysis focuses on the notice requirement of Rule 15.03.

I n Soper , the plaintiff attempted to amend his complaint against Wal-M art to ad d Orkin, the manufacturer

of the bug spraying device that injured him, pursuant to Rule 15(c) of the Federal Rules of Civil Proce

dure
. 5 With regard to the notice requirement of Rule 15(c), the court noted that constructive or implied notice, rather than actual notice, may be sufficien t under some circumstances. See Soper , 923 F. Supp. at 1040 (citi ng Berndt v. State , 796 F.2d 879, 884 (6th Cir. 1986)). The Soper court appeare d to suggest tha

t less tha n actual notice would be required, for instance, when there was an agency relationship between the original defendant and the defendant namedin the amended complaint. See id. Applying this rule to the facts with which it wa s presented, the court concluded that no such relationship existed between Wal-Mart and Orkin and consequently held that

Orkin was not prov

ided with notice wi

thin the meaning o

f Rule 15(c). See id. at 1041.

We si milarly find that Lipscomb did not provide Loga n, Chaney, and Dyson wi t h notice as required by Rule 15.03. The relation back provision of Rule 15.03 is nottriggered un less6 This provision state s as follows: (a) The followin

g actions shall be

commenced within o

ne (1) yea r after the cau

se of action accrued: (1) Actions for libel, for injuries to the person , false imprisonme nt, malicious prosecution, breach of marriage promise; Tenn. Code Ann. § 28-3-104 (a)(1) (Supp. 1998)(emphasis added). the newly adde

d defendant rec

eives notice withi

n the applicable statute of limitations or within 120 days after commence

ment of the action . Thus, in the instantcase, Lipscomb was obligated to give notice to Lo gan, Cha ney, and Dyso n wi thi n 12 0 da ys of September 24, 1 996. She did not provide this notice but insteadfiled a separate action against the three men on February 13, 1997, after the expiration of the 120 day period. While we recognize that Amerisure rece ived notice of

the original complaint, we find that there is no relationship between Amerisure and Logan, Chaney, and Dyson that would justify imputing notice to these three men. We there for e conclude that the trial court properly denied Lipscomb’s request to amend her complaint under Rule 15.03.

Amerisure’s Motion to Dis miss

We ne xt consider whethe r the trial court e

rred in grantin

g Amerisure’s m

oti ons t o dismiss. The trial cou rt en tered separate orders dismissing Lipscomb’s original “John Doe” complaint as well as her compl aint aga inst Logan, Chaney, and Dy son. We will consider each of the se o rder s se para tel y.

We con cl uded above that section 20-1-119 has no application to the facts of the present case . Ac cord ingl y, this provision does n ot operate to allo

w Lipscomb to ma

intain a separat

e action against Log

an, Ch an ey, and Dyson subsequent to the running of the statute of limitations applicable

to her claims against these parties. Lipscomb’s injury occurred on September 24, 1995. Under Tennessee’s one

year limita

tions period applic

able to personal injury claims, the last day for filing an action against Logan, Chaney, a nd Dyson was September 24, 1996. See Tenn. Code Ann. § 28-3-104(a)(1) (Supp. 1998). 6 Lipscomb’s complaint against these parties was filed thereafter on F ebruary 13, 1997. We thus find that Lipscomb’s claims against Logan, Chaney , and Dyson a

r e barred by the statut

e of limitations and consequently hold that they were properly dismissed by the trial court.The tr ial court also dismi ssed Lipscomb’ s original “John Do e” complain

t . Lipscomb’s “John Doe” claim was filed on September 24, 1996, exactly one year a fter the incident that resulted in her in

juries. Thus, this c

laim i s not barred by the one yea r statute of limitations applicable

to personal injur y claim s. Amerisure contends, however, that Lipscomb’s “John Doe” claim fails under this court’s ho lding in Gafford v. Caruther s , No. 91C-2709, 1994 WL 420917 (Tenn. App. Aug. 12, 1994). In that case, Gafford sued a number of na med defendan ts see king damages for personal injuries sustained as a re sult of an automobile

accident. See id. at *1. During the course of discovery, Gafford learned that an unknown motorist was also involved in the accident andconsequently

caused a “John Doe” warrant to be issued in an effort to recover from Gafford’s uninsuredmotorist

carrier. See id. We first determine d that, because the “John Doe” warrant was issued more than one year after the accident, Ga fford no longer h ad a cause of a ction against the unknown motorist. See id. at *2. We then concluded as follows:

Under the [uninsured motorist] stat ute, if the insured is not entitled to co mp ensation from the uninsured motorist, the insured wo uld not be entitled to comp ensation from the

uninsured motorist carrier. This statute cannot be read as providing a vi ctim o f an uninsuredmotorist w ith a more effective remedy against his own uninsuredmotorist carrier thanhe would have against the uninsured motorist himself.

Id.
Lipscomb concedes that theabove cited holding of Gafford is a correct statement of Tennessee law. She contends , however, that th e opposi te must also be true . That is, Lipsc omb argues that the uninsured

motorist statute

cannot be read to provid

e a less effect

ive remedy

against the plaintiff’s uninsured motorist carrier than the plaintiff woul d have agai nst the uninsured mo torist. We disagree. Even if we

accepted Lipscomb’s position, however, we would still find that Lipscomb cannot recover aga

inst Amerisure. Ac

cording to L

ipscomb, the reme

dy again st an u ninsured motorist carrier can be neither

more effective nor less effective than the remedy a gainst the uninsured motorist himself. Under Lipsco mb’s rationale, th

en, these remedi

es must be equal.

In the present case, we have previou

sly concluded that the trial court properly dismissed Lipscomb’s claim against Logan, Chaney, and Dyson as barre d by the statute of limita

tions. Thus, Lipscomb has no remedy against these pa rties. If we adopted Lipsc

omb’s position, we w

ould be compelled t

o find that,because these remedies must be equal, Lipscomb similarly ha s no remedy against Amerisure.
Applying the rule of Gafford, we find that, bec ause Lipscomb

is without a remedy against Loga n, C han ey, and D yson, she is also without a remedy aga inst Amerisure. We thus conclude that the trial court properly granted Amerisure’s motion to dismiss Lipscomb’s “John Doe” complaint.

Conclusion

For the foregoing reasons, the orders of the tri al court denying Lipscomb’s motion to amend and gran

ting Amerisure’ s motions to dismiss are in allrespects affirmed. Costs on appeal

are c harg ed t o Lip sco mb, for whi ch ex ecut ion may i ssu e ifnece ssa ry.

____________________________________ FARMER

, J.

______________________________ HIGHERS, J. (Conc

urs)

______________________________ LILL ARD, J. (Concurs)