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§31.1A Applicability of GTLA to Government Contractors

The Case:  Shaw v. Cleveland Utilities Water Division, No. E2009-00627-COA- R3-CV, 2009 WL 4250157 (Tenn. Ct. App. Nov. 30, 2009) (perm. app. denied May 13, 2010).

The Basic Facts:  Plaintiff had dispute with local utility district and two private contractors that were working with utility district.  All defendants claimed that the case against them was time-barred, with the private contractors saying that they were entitled to protection under the one-year statute of limitations under the Governmental Tort Liability Act.

The Bottom Line:

  • Now we must consider whether the GTLA statute of limitations applied to the other defendants. We are not given any reason by either the trial court or the other defendants why the GTLA statute should apply to the claims, if any, against [private contractors] GAB and Servpro. Servpro relies on one case from another jurisdiction where the court allowed a guarantor to assert the statute of limitations defense that was available to its principal. Housing Authority of Huntsville v. Hartford Accident and Indemnity Co., 954 So.2d 577, 580 (Ala. 2006). The Housing Authority case falls far short of establishing the rule to which Servpro extrapolates, i.e., that an agent may always assert any statute of limitations available to its  principal, even if the principal is a governmental entity.  Servpro admits that there are no Tennessee cases for the rule that an agent may assert any defense available to a ‘governmental entity’ principal.” 2009 WL 4250157 at *5.
  • “The GTLA shows a legislative intent that the benefits of the Act not extend beyond defined ‘Governmental entit[ies]’ and defined ‘employees.’ See, e.g., Tenn. Code Ann. §§ 29-20-202 (entity liable for negligent operation of vehicle by employee); 29-20-205 (entity liable for negligent acts of employee); 29-20-313 (if trier of fact determines that defendant claiming benefit of GTLA is not an employee ‘the lawsuit as to that defendant shall proceed like any other civil case’). In fact, governmental entities are prohibited from extending the benefits of the GTLA ‘to independent contractors or other persons or entities by contract, agreement or other means….’  Tenn. Code Ann. § 29-20-107(c)(2000 & Supp. 2009). Accordingly, we hold that the one-year GTLA statute of limitations does not apply to GAB or Servpro. Thus, unless there is an alternative ground to sustain the dismissals as to these two defendants, we must vacate the trial court’s order as to them.” Id.

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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.

To order a copy of the book, visit www.dayontortsbook.com. John also blogs regularly on key issues for tort lawyers. To subscribe to the Day on Torts blog, visit www.dayontorts.com.

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