When an amended answer asserted comparative fault against the city, which had previously been a party but had been voluntarily dismissed before the amended answer was filed, the plaintiff was allowed to add the city as a defendant within ninety days of the comparative fault allegation under Tenn. Code Ann. § 20-1-119.
In Sands v. Williard, No. W2024-00772-COA-R9-CV (Tenn. Ct. App. Jan. 24, 2025), the plaintiff filed suit against both the city and homeowners after she tripped on a sidewalk in front of the homeowners’ property. The city raised an issue about service of process in its initial answer. In their initial answer, the homeowners admitted to two paragraphs stating that the city had a duty, but there was no other allegation of comparative fault.
The city eventually filed a motion for summary judgment based on the statute of limitations, asserting that it was not properly served and, thus, the limitations period had run. While this motion was pending, the homeowners moved to amend their answer to assert comparative fault against the city. The plaintiff then moved to voluntarily dismiss her claim against the city. The plaintiff explained in her motion that “the purpose of the dismissal was to avoid the alleged outstanding service issues” and that she intended to rely on Tenn. Code Ann. § 20-1-119 to bring the city back into the suit after the homeowners filed their amended answer. The trial court granted the voluntary dismissal, and it allowed the plaintiff to bring the city back into the suit after the homeowners’ amended answer asserted comparative fault against the city.
The city then moved to dismiss. The city argued that the homeowners’ first answer asserted comparative fault, so the plaintiff did not “file her amended complaint within 90 days of the first answer to assert comparative fault against the City.” The city asserted that the fact that it was a party when this initial answer was filed was irrelevant to the analysis. The plaintiff countered that the city’s status as a party was “critical” to the issue, as the homeowners’ amended answer was “the first time that comparative fault was raised against the City as a non-party.” The trial court and Court of Appeals agreed with the plaintiff.
In a previous case, the Court of Appeals stated that Tenn. Code Ann. § 20-1-119 allows a plaintiff to add a non-party as a defendant if three conditions are met:
(1) a defendant is named in an original or amended complaint within the applicable statute of limitations, (2) that defendant alleges in an answer or amended answer that a person not a party to the suit caused or contributed to the injury at issue, and (3) the plaintiff’s cause(s) of action against that person would be barred by the applicable statute of limitations were it not for the statute.
(quoting Scales v. H.G. Hill Realty Co., LLC, No. M2017-00906-COA-R3-CV, 2018 WL 625117 (Tenn. Ct. App. Jan. 30, 2028). Here, the plaintiff had shown that all three of these conditions were met when the homeowners filed their amended answer. Further. the Scales case was factually similar to the instant case, and the Scales opinion “made clear that the Hill Defendants previously having been parties did not affect the plaintiff’s ability to bring them back into the case.” (internal citation omitted).
The city pointed to two other Court of Appeals cases to argue that the assertion of comparative fault in the homeowners’ initial answer barred the plaintiff from utilizing Tenn. Code Ann. § 20-1-119, but the Court disagreed with the city’s interpretation of these opinions. Instead, the Court found that both cases supporting allowing the plaintiff to re-add the city. One case held that a “plaintiff’s knowledge of the existence of other potential defendants was irrelevant to the application of Tennessee Code Annotated section 20-1-119,” and that the status as a non-party should be measured at the time the plaintiff “sought to amend her complaint.” (See Townes v. Sunbeam Oster Co., 50 S.W.3d 446 (Tenn. Ct. App. 2001)). The other case made “clear that there is no prohibition upon using voluntary dismissal as part of employing the statutory tool made available to plaintiffs through Tennessee Code Annotated section 20-1-119.” (See Queen’s Tree Surgery, Inc. v. Metro Gov’t of Nashville & Davidson Cnty., No. M20030-0228-COA-R3-CV, 2003 WL 22768689 (Tenn. Ct. App. Nov. 24, 2003)).
The Court wrote that the “trial court’s ruling in the present case tracks the plain language of Tennessee Code Annotated 20-1-119(a)(1).” While there was some controversy over whether the homeowners’ original answer properly asserted comparative fault, the Court noted that it did not matter, as § 20-1-119 was only triggered when comparative fault was asserted against a non-party. The city was only a non-party when the amended answer was filed, not at the time the original answer was filed, so the plaintiff had 90 days from the amended answer to re-add the city to the suit. The trial court’s ruling was therefore affirmed.
This opinion clarifies that a plaintiff can use a comparative fault allegation to bring a nonparty into an action, even if the non-party was previously a party to the case, so long as they do so within 90 days of the first comparative fault assertion that was made when the potential tortfeasor was a nonparty. As illustrated by this case, this can sometimes be an important litigation tool for plaintiffs.
This opinion was released two weeks after oral arguments in this case.