Day on Torts
The Tennessee General Assembly has modified Tenn. Code Ann. Section 20-1-119 to make it clear that the plaintiff gets the benefits of the statute even if the fault allegations against a nonparty are made by a uninsured/underinsured motorist insurer. The new legislation, Public Chapter No. 294, states as follows:
Section 1. Tennessee Code Annotated, Section 20-1-119(a), is amended by
redesignating the current language as subdivision (a)(1) and adding the following new
subdivision:(2) In a civil action filed against an owner and operator of an uninsured motor vehicle, as defined in§ 56-7-1202, where comparative fault is or becomes an issue, if an insurance company, served pursuant to§ 56-7-1206 with an original complaint initiating a suit filed within the applicable statute of limitations, or served pursuant to § 56-7-1206 with 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 plaintiffs 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:
(A) 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
(B) 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).SECTION 2. This act takes effect July 1, 2023, the public welfare requiring it.
Under Tennessee’s goofy procedure to assert an UM/UIM claim, a UM/UIM insurer is arguably not defendant named in an original or amended complaint filed within the statute of limitations, which is the condition for a plaintiff to take advantage of the provisions of the statute. The new subsection makes it clear that a plaintiff can use the statute to add a nonparty as a party defendant to the case even though the statute of limitations has expired, regardless of whether the fault allegation against the nonparty is asserted by a named defendant or an unnamed UM/UIM insurer. (Of course, plaintiff must take the appropriate action within the time period set forth in the statute.)