IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

September 19, 2013 Session

KRISTINA MORRIS v. JIMMY PHILLIPS, ET AL.

Appeal from the Circuit Court for Davidson County

No. 11C3082 Joseph P. Binkley, Jr., Judge

No. M2013-00417-COA-R9-CV - Filed December 17, 2013

A multi-vehicle accident occurred in August 2010. The plaintiff initially named only one of

the drivers involved in the accident along with the record owner of the driver’s vehicle. The

record owner filed an answer identifying three other drivers/tortfeasors involved in the

accident in December 2011, and the driver identified the same three individuals astortfeasors

in his answer that was filed seven months later, in July 2012. The plaintiff did not file an

amended complaint adding the individuals identified as defendants until August 2012, which

was more than 90 days after the first answer was filed. One of the individuals named as a

defendant filed a motion to dismiss, arguing the plaintiff waited too late to add her as a

defendant. The trial court denied the motion. The late-added defendant appealed, and we

reverse the trial court’s judgment.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Reversed

PATRICIA J. COTTRELL, P.J., M.S., delivered the opinion of the Court, in which ANDY D.

BENNETT, and RICHARD H. DINKINS, JJ., joined.

Daniel A. Gagliano, Nashville, Tennessee, for the appellant, Rachel Mitchell.

Allen Woods, Nashville, Tennessee, for the appellee, Kristina Morris.

OPINION

Kristina Morris was involved in a multi-vehicle accident on August 18, 2010, when

she was hit from behind while driving her car north on Interstate 65. Ms. Morris filed a

negligence action on August 8, 2011, alleging she suffered personal injury and property

damage as a result of the accident. Initially, Ms. Morris named just one of the drivers

involved in the accident as a defendant, Jimmy Phillips, as well as the record owner of the
car driven by Mr. Phillips, Mary Thompson. Ms. Morris alleged Mr. Phillips was driving a

few cars behind her and that he ran into other vehicles, causing a chain reaction that resulted

in Ms. Morris*s car being struck by a vehicle other than the one Mr. Phillips was driving.

Ms. Morris amended her Complaint on October 14, 2011, to substitute Patricia Griffin

for Mary Thompson as the record owner of the vehicle Mr. Phillips was driving. Ms. Griffin

filed an Answer on December 21, 2011, in which she identified three other individuals,

Rachel Mitchell, Porsha Johnson, and Kathy Pearson, who were driving vehicles in front of

Mr. Phillips at the time of the accident. Ms. Griffin alleged these three other individuals

were negligent and that their negligence either barred or reduced Ms. Morris’s claims against

Ms. Griffin. Specifically, Ms. Griffin alleged these three other individuals

made sudden and abrupt stopping movements, said movements being made

without first ascertaining whether said movements could be made in safety,

and thus the defendant avers that the actions of the plaintiff and said

aforementioned drivers caused or contributed to the contact to the rear of the

plaintiff vehicle and therefore this defendant avers that the plaintiff and said

aforementioned drivers Mitchell, Johnson, and Pearson, at the time of the

accident involved herein were negligent . . . .

Mr. Phillips filed his Answer seven months later, on July 16, 2012. Mr. Phillips

identified the same three individuals as additional tortfeasors in his Answer that Ms. Griffin

had identified in her Answer. Then, eight days later, on July 24, 2012, Ms. Morris filed a

motion to amend her Complaint, seeking the court’s permission to add Rachel Mitchell,

Porsha Johnson, and Kathy Pearson as additional defendants/tortfeasors.

Ms. Mitchell filed a Motion to Dismiss in which she argued Ms. Morris had waited

too long to amend her complaint to add Ms. Mitchell as a defendant. Ms. Mitchell contended

that the statute governing joinder of third party defendantsin comparative fault casesrequires

a plaintiff to add a nonparty defendant within 90 days of the filing of the first answer

identifying that person as a potential tortfeasor. Ms. Mitchell pointed out that Ms. Griffin

identified Ms. Mitchell as a potential tortfeasor in her Answer filed on December 21, 2011,

but that Ms. Morris waited until July 24, 2012, which was more than 90 days later, to seek

permission to add Ms. Mitchell as a defendant.

Tennessee Code Annotated § 20-1-119 gives a plaintiff alleging negligence 90 days

to add an individual not initially named in his or her complaint, but who is identified by an

original defendant as a potential tortfeasor:

(a) In civil actions where comparative fault is or becomes an issue, if a

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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 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, either:

(1) Amend the complaint to add the person as a defendant pursuant to Tenn.

R. Civ. P. 15 and cause process to be issued for that person; or

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

complaint initiating the suit or an amended complaint for purposes of this

subsection (a).

Ms. Mitchell contends that Ms. Morris was made aware of Ms. Mitchell’s potential

liability when Ms. Griffin filed her Answer on December 21, 2011, and that the 90 days

began to run at that time. Ms. Mitchell points out that Mr. Phillips identified the same three

additional tortfeasors as Ms. Griffin, and that his Answer included no more information

about these three individuals or about the accident than Ms. Griffin’s Answer.

The trial court denied Ms. Mitchell’s motion, writing:

Defendant Griffin’s allegations that Rachel Mitchell was a third party

tortfeasor were not reasonably supported by facts known by Defendant Griffin

at the time such allegations were made in her Answer. Furthermore, the

allegations made by Defendant Phillips against Ms. Mitchell in his Answer

many months later were reasonably supported and would lead to the

conclusion that Ms. Mitchell was a potential third party tortfeasor in this case.

Considering the remedial nature or T.C.A. § 20-1-119 as well as the unique

facts of this case, the Court is of the opinion that Plaintiff timely filed her

action against Defendant Mitchell.

Ms. Mitchell filed a motion seeking permission to file an interlocutory appeal, which

the trial court granted. Ms. Mitchell then applied to this Court for permission to file an

interlocutory appeal, which we granted.

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The only issue on appeal is whether Ms. Morris’s claims against Ms. Mitchell were

barred by the one-year statute of limitations when she failed to amend her Complaint to add

Ms. Mitchell as a defendant within 90 days of the filing of the first Answer naming Ms.

Mitchell as a potential tortfeasor.

Our Supreme Court has set forth the standard of review appellate courts apply to this

type of case:

The applicability of Tennessee Code Annotated section 20-1-119 is a question

of statutory construction that we review de novo with no presumption of

correctness. See Button v. Waite, 208 S.W.3d 366, 369 (Tenn. 2006). When

construing a statute, our primary purpose is to give effect to the legislative

intent. State v. Flemming, 19 S.W.3d 195, 197 (Tenn. 2000). “We determine

legislative intent from the natural and ordinary meaning of the statutory

language within the context of the entire statute without any forced or subtle

construction that would extend or limit the statute’s meaning.” Id.

Austin v. State, 222 S.W.3d 354, 357 (Tenn. 2007).

The statute of limitations for negligence actions resulting in personal injuries is one

year. Tenn. Code Ann. § 28-3-104. The doctrine of comparative fault was judicially adopted

in Tennessee in the case McIntyre v. Balentine, 833 S.W.2d 52, 56 (Tenn. 1992). Shortly

after that decision, the General Assembly enacted Tenn. Code Ann. § 29-1-119 to allow

plaintiffs the opportunity to amend their complaints to bring in as additional parties

individuals the defendants alleged in their Answer were at fault for the plaintiff’s alleged

injuries.

The purpose of § 29-1-119 is to give plaintiffs a limited opportunity to amend a

complaint to add as a defendant any person another defendant alleges caused or contributed

to a plaintiff’s injury, even if the statute of limitations applicable to the plaintiff’s cause of

action has expired. Owens v. Truckstops of Am., 915 S.W.2d 420, 427 (Tenn. 1996). The

statute is to be liberally construed, such that a defendant is not required to use particular

language or explicitly allege the fault of a nonparty for a plaintiff to be put on notice that a

nonparty may be liable for the plaintiff’s alleged damages. Austin, 222 S.W.3d at 357-58.

The language of the statute is clear, however, that a plaintiff has 90 days from the

filing of the first answer or first amended answer alleging another person’s fault to add that

other person as a defendant. The Answer Ms. Griffin filed on December 21, 2011, was

unambiguous in identifying Ms. Mitchell as a tortfeasor who may be liable to Ms. Morris for

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the injuries she allegedly suffered as a result of the accident on August 18, 2010. Pursuant

to the language of § 29-1-119, Ms. Morris had until March 21, 2012, to add Ms. Mitchell as

a defendant to her action.

We are not persuaded by Ms. Morris’s argument that Mr. Phillips’ Answer triggered

the 90-day window but that Ms. Griffin’s Answer did not, because Mr. Phillips used the same

language in his Answer that Ms. Griffin used in her Answer to identify the additional

tortfeasors and describe their liability. The fact that Mr. Phillips was at the scene of the

accident, and Ms. Griffin was not, is irrelevant. The Tennessee Rules of Civil Procedure do

not require a party to have first-hand knowledge or be an eyewitness to an event to set forth

an affirmative defense or allege comparative negligence by a non-party. Pleadings in

complaints and answers are often based on information and belief, and the discovery process

then allows the parties to determine whether there is evidence to support the statement(s)

made on information and belief. Contrary to Ms. Mitchell’s argument, Ms. Griffin was not

required to “state any factual basis for how she ha[d] knowledge of Ms. Mitchell using, or

failing to use, her turn signals” for the 90-day statutory period to begin to run.

The trial court’s judgment denying Ms. Mitchell’s motion to dismiss is hereby

reversed and the case is remanded to the trial court for further proceedings in accordance

with this opinion.

Costs of this appeal shall be taxed to the appellee, Kristina Morris, for which

execution shall issue, if necessary.

___________________________

PATRICIA J. COTTRELL, JUDGE

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