Supreme Court Clarifies Application of Tenn. Code Ann. Section 20-1-119 to Dismissed Defendants

July 3, 2012

Nashville, Tenn. The Tennessee Supreme Court clarified when plaintiffs may add back to a lawsuit involving comparative fault defendants previously named, but dismissed by a non-final order after the statute of limitations has run.

The decision arises from a 2006 automobile accident. While driving his parents’ vehicle from a college fraternity social, Jeffrey Callicutt hit Davey and Teresa Mann. The Manns sued Callicutt, his parents and the fraternity, among others. During the course of the litigation, several fraternity members were named as defendants, but dismissed by non-final orders, and then named again by the Manns after other timely-sued defendants filed answers alleging comparative fault against the dismissed defendants. The Manns relied on Tennessee Code Annotated 20-1-119, which allows a plaintiff to sue any person who is “not a party to the suit” within 90 days of a timely-sued defendant’s answer alleging fault against the non-party. The trial court and Court of Appeals held section 20-1-119 did not apply because the dismissed defendants remained parties to the suit.

In a unanimous opinion, the Supreme Court disagreed and held that a defendant dismissed by a non-final order is “not a party to the suit” for purposes of section 20-1-119 and may be added back to the lawsuit pursuant to section 20-1-119 if a timely-sued defendant files an answer alleging fault against the dismissed defendant. The Supreme Court remanded to the trial court for further proceedings.

To read Davey Mann et alv. Alpha Tau Omega Fraternity et al opinion authored by Chief Justice Cornelia A. Clark, visit