§15.28 Tortfeasors in a Single Event May be Tried Separately

The Case: McNabb v. Highways, Inc ., 98 S.W.3d 649 (Tenn. 2003).

The Basic Facts: Plaintiffs were the driver and passenger in a car involved in a collision with another car in a construction zone. Plaintiffs each brought actions against the other driver and the company that placed a concrete barrier in the zone where the collision occurred. Plaintiffs eventually settled with the other driver.

The Bottom Line:

  • "Turning to the merits of the appeal, Highways argues that where the separate, independent negligent acts of more than one tortfeasor combine to cause a single, indivisible injury, a plaintiff is limited to one cause of action and must join all of the tortfeasors in that action and that this Court's decision Samuelson v. McMurtry, 962 S.W.2d 473 (Tenn.1998), requires that result. Moreover, Highways argues that joinder of Morrison was required as an indispensable party. See Tenn. R. Civ. P. 19. McNabb and Harrison respond that Samuelson is not controlling since Highways may raise comparative fault as an affirmative defense and ask the jury to allocate fault to Morrison. They also contend that Ronald Morrison was not an indispensable party in this action." 98 S.W.3d at 652.
  • "We begin our analysis with the landmark case of McIntyre v. Balentine, 833 S.W.2d 52 (Tenn.1992), in which we adopted a system of modified comparative fault. Under this system, a plaintiff may recover damages where the plaintiff's fault is less than the defendant's fault. The plaintiff's recovery of damages, however, is reduced to reflect his or her degree of fault. Id. at 57. In cases of multiple tortfeasors, a 'plaintiff will be entitled to recover so long as plaintiff's fault is less than the combined fault of all tortfeasors.' Id. at 58." Id.
  • "In applying comparative fault principles to this case, Highways relies primarily upon Samuelson v. McMurtry and asserts that a plaintiff must join all tortfeasors in the same proceeding or else face dismissal of later complaints against other tortfeasors. In the unusual case of Samuelson, the plaintiff's estate filed a complaint against two physicians and a chiropractor alleging a negligent failure to diagnose the decedent's pneumonia. After the trial court dismissed the cause of action against the chiropractor, the case went to trial and a jury apportioned fault between the two physicians. The plaintiff elected not to appeal the jury's verdict against the two physicians, but did appeal the trial court's dismissal of the complaint against the chiropractor. 962 S.W.2d at 474-75. We held on appeal that the trial court erred in dismissing the claim against the chiropractor because it allowed the plaintiff to proceed 'in separate, consecutive actions [that] would defeat the efficiency and fairness that are the objectives of the principles of comparative fault.' Id. at 476. We also said, however, that
    [t]he trial court's errors deprived the plaintiff of the right to proceed against the [chiropractor] in the same trial with the other defendants and also of the right to have the decedent's fault compared with the fault of all the defendants. The defendants other than [the chiropractor] were deprived of an opportunity to have fault apportioned against [the chiropractor]. This result could have been accomplished on remand had the plaintiff appealed the entire case. Id. at 476."
    Id. at 653.
  • "The appellant's interpretation of Samuelson is overly broad. It relies on Samuelson for the proposition that we have adopted a 'one-action' rule under which a plaintiff in all negligence cases must pursue all tortfeasors in a single action or suffer the dismissal of later actions. Under the unique facts in Samuelson, however, we concluded that the chiropractor could not be tried on remand without impugning the jury's verdict or denying the opportunity for the chiropractor's degree of fault to be properly compared against the two physicians under McIntyre. Samuelson, 962 S.W.2d at 476. In contrast, there has been no adjudication or allocation of fault in this case, and Highways has not been denied the opportunity to assert that the responsibility for the appellees' injuries rests elsewhere. In short, this case is fundamentally different from the rare facts in the Samuelson case.FN5
    FN5 Highways' effort to bolster its interpretation of Samuelson with authority from other jurisdictions is likewise unavailing. It has identified only two states that have adopted a procedure by which a plaintiff must file a single action against all potential tortfeasors or else risk the dismissal of later actions, one of which we cited in Samuelson. Cogdell v. Hosp. Ctr. at Orange, [560 A.2d 1169 (N.J. 1989)]; Albertson v. Volkswagenwerk Aktiengesellschaft, 634 P.2d 1127 (Kan. 1981)]. Even in these jurisdictions, however, the courts have clarified that a case would not be dismissed against one defendant where a separate action against another defendant ends with a settlement agreement and not an adjudicated allocation of fault. See Mitchell v. Charles P. Procini, D.D.S., [752 A.2d 349, 355-56 (N.J. Super. Ct. App. Div. 2000) (settlement with one defendant did not preclude allocation of fault in an action against another defendant); Mathis v. TG & Y, 751 P.2d 136 (Kan. 1988) (settlement agreement with one defendant did not mandate the dismissal of a separate suit against another defendant when there had been no judicial determination of fault). In short, the cases relied upon by Highways are fundamentally different than the facts of the present case."
    Id.
  • "Highways' broad interpretation of Samuelson is also misplaced because it conflicts with well-established procedural rules and statutes applied under McIntyre. We emphasized in McIntyre, for example,
    that 'fairness and efficiency require that defendants called upon to answer allegations [of] negligence be permitted to allege, as an affirmative defense, that a nonparty caused or contributed to the injury or damage for which recovery is sought.' 833 S.W.2d at 58 (emphasis added). The Rules of Civil Procedure therefore require that a defendant shall raise comparative fault, 'including the identity or description of any other alleged tortfeasors,' in an answer as an affirmative defense to the plaintiffs cause of action. See Tenn. R. Civ. P. 8.03; George v. Alexander, [931 S.W.2d 517, 521 (Tenn. 1996)] (Court discussed the defendant's duty to plead comparative fault and identify tortfeasors under Rule 8.03)."
    Id. at 653-64.
  • "Similarly, we recognized in McIntyre that after a defendant raises comparative fault and asserts that another tortfeasor is liable to the plaintiff, a plaintiff must make a timely amendment to the complaint and serve process in order to seek a judgment against the newly named tortfeasor. McIntyre, 833 S.W.2d at 57; Browder v. Morris, [975 S.W.2d 308, 310 (Tenn. 1998)]." Id.
  • "The legislature has since enacted Tennessee Code Annotated, Section 20-1-119(a), which affords a plaintiff an additional ninety (90) days in which to either amend the initial complaint or file a new and separate complaint against the new tortfeasor when a defendant's answer asserts comparative fault and identifies a tortfeasor against whom the statute of limitations has run. As the Court of Appeals has observed, the purpose and effect of this statutory provision 'simply preserves a plaintiffs prerogative to select defendants just as they were able to before McIntyre v. Balentine was decided.' Townes v. Sunbeam Oster Co., [50 S.W.3d 446, 453 (Tenn. Ct. App. 2001)]. In short, the one-action rule advocated by Highways, under which a plaintiff bears the burden of identifying and filing actions against all potential defendants in a single complaint or else suffer the dismissal of any later amendments or complaints, would render the provisions of Rule 8 of the Tennessee Rules of Civil Procedure and Tennessee Code Annotated, Section 20-1-119(a), all but meaningless." Id. (Footnote omitted).
  • "Similarly, Highways' argument, and the trial court's conclusion, that it is unfair to permit a plaintiff to divide an action by seeking to recover complete damages from each of multiple defendants is likewise inconsistent with McIntyre when applied to the facts of this case. The purpose of comparative fault under McIntyre is to link one's liability to his or her degree of fault in causing a plaintiff's damages. McIntyre, 833 S.W.2d at 57. Nothing in this case prevents Highways from asserting comparative fault as an affirmative defense and nothing prevents Highways from arguing that the jury should allocate all or a portion of the fault to McNabb, Harrison, and Ronald Morrison. As the Court of Appeals in this case observed:
    [T]he circumstances of this case are not unlike a plaintiff suing two defendants for tortious injuries in the same action and settling with the one before trial, but going to trial as to the remaining defendant. A plaintiffs settling with one co-defendant under the comparative fault doctrine, does not establish a basis for dismissal as to the remaining defendant. In these cases, the defendant is not deprived of the opportunity to have fault apportioned against Morrison, as it has ... raised in its answer the affirmative defense of Morrison's negligence.

    See Mitchell v. Charles P. Procini, D.D.S., [752 A.2d 349, 355 (N.J. Super. Ct. App. Div. 2000)] (concluding that a settlement with one defendant did not prevent allocation of fault in a separate action against another defendant); Mathis v. TG & Y, [751 P.2d 136, 138 (Kan. 1988)] (concluding that a settlement with one defendant did not require dismissal of a separate suit because there had been no judicial determination of fault). The proceedings, therefore, fully comport with the purpose of linking liability with the degree of fault under McIntyre." Id. at 654-55.
  • "Finally, the record does not support Highways' argument that allowing the action to continue is unfairly prejudicial because it places the burden upon it to establish Morrison's fault and denies it the opportunity to conduct a joint defense with Morrison. Highways has not demonstrated any potential defense that has been lost or evidence that has been rendered unavailable in these proceedings. Moreover, as the appellees' assert, the alleged prejudice is at best conjectural since Highways not only will be able to assert comparative fault as a defense but will also be able to argue that all of the fault lies with Morrison uncontradicted by Morrison's defense or presence as a litigant. In short, Highways has demonstrated no prejudice that would justify the adoption of a rule that finds no support either in Tennessee or other jurisdictions." Id. at 655.

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The foregoing is an excerpt from Day on Torts: Leading Cases in Tennessee Tort Law, published by John A. Day, Civil Trial Specialist, Fellow in the American College of Trial Lawyers, recipient of Best Lawyers in America recognition, Martindale-Hubbell AV® Preeminent™ rated attorney, and Top 100 Tennessee Mid-South Super Lawyers designee. Read John’s full bio here.

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