       IN THE COURT OF APPEALS OF TENNESSEE
            MIDDLE SECTION AT NASHVILLE

                                                     FILED
PAUL GLEN DRAPER,              )
                               )                       April 11, 1997
       Plaintiff/Appellant,    )
                               )   Davidson Circuit Cecil W. Crowson
                                                   Appellate Court Clerk
                               )   No. 95C-3755
VS.                            )
                               )   Appeal No.
                               )   01A01-9609-CV-00394
CURT REAVER and                )
RICHARD ALAN TACEY, JR.,       )
                               )
       Defendants/Appellees.   )


      APPEAL FROM THE CIRCUIT COURT FOR DAVIDSON COUNTY
                   AT NASHVILLE, TENNESSEE

           THE HONORABLE MARIETTA M. SHIPLEY, JUDGE


For the Plaintiff/Appellant:            For the Defendant/Appellee
                                        Curt Reaver:
Joseph P. Rusnak
TUNE, ENTREKIN & WHITE                  Bryan Essary
Nashville, Tennessee                    Joe W. Ellis, II
                                        GIDEON & WISEMAN
                                        Nashville, Tennessee


                                        For the Defendant/Appellee
                                        Richard Alan Tacey, Jr.:

                                        Dennis E. Blevins
                                        Nashville, Tennessee



         AFFIRMED IN PART; VACATED IN PART
                  AND REMANDED


                                   WILLIAM C. KOCH, JR., JUDGE
                                   OPINION

       This appeal stems from a three-vehicle collision on I-65 in Davidson
County. One driver filed suit in the Circuit Court for Davidson County against his
employer and the owners of the other two vehicles. The plaintiff later voluntarily
dismissed his claims against his employer and moved to amend his complaint to
add his employer as a plaintiff. The trial court denied the motion and granted
summary judgments dismissing the plaintiff’s claims against the owners of the
other vehicles. The plaintiff asserts on this appeal that the trial court should have
permitted him to amend his complaint and that the summary judgments would
have been inappropriate had the trial court done so. While the trial court properly
granted the summary judgments concerning the plaintiff’s personal injury claims,
it erred by dismissing the plaintiff’s property damage claims. In order to avoid a
multiplicity of suits, the trial court should have treated the plaintiff’s motion to
amend his complaint as a motion by the plaintiff’s employer to intervene as of
right pursuant to Tenn. Code Ann. § 50-6-112(c) (1991). Accordingly, we vacate
the summary judgments in part and remand the case for further proceedings.


                                              I.


       On October 22, 1994, Paul Draper was involved in a three-vehicle collision
on I-65 in Nashville while attempting to assist a stranded pedestrian. On
November 7, 1995, he filed suit in the Circuit Court for Davidson County against
his employer, Pig Improvement Company, and the owners of the other two
vehicles involved in the collision, Richard Alan Tacey, Jr. and Curt Reaver,
seeking to recover for personal injury and damage to his personal property.


       On February 8, 1996, Mr. Reaver moved for summary judgment asserting
that Mr. Draper’s claims were time-barred. While this motion was pending, Mr.
Draper voluntarily dismissed his claims against Pig Improvement and moved to
amend his complaint to add Pig Improvement as a plaintiff.1 The trial court

       1
       The purpose of the amendment was obviously to enable Pig Improvement to assert its
subrogation rights under Tenn. Code Ann. § 50-6-112(c). In an affidavit supporting the motion
                                                                                (continued...)

                                             -2-
granted Mr. Reaver’s motion for summary judgment before it heard Mr. Draper’s
motion to amend. Thereafter, Mr. Tacey filed a motion for summary judgment
also asserting that Mr. Draper’s claims against him were time-barred. The trial
court consolidated both motions for hearing, and on June 20, 1996, entered an
order granting Mr. Tacey’s motion for summary judgment and denying Mr.
Draper’s motion to amend. This appeal followed.


                                             II.


       We must first address a threshold question concerning the viability of this
appeal. After Mr. Draper filed his brief, Messrs. Reaver and Tacey, relying on the
Eastern Section’s opinion in Cobb v. Beier, App. No. 03A01-9602-CV-00051,
1996 WL 375293 (Tenn. Ct. App. July 3, 1996), perm. app. granted (Tenn. Oct.
28, 1996), moved to dismiss the appeal because Mr. Draper had failed to file a
copy of his notice of appeal with the clerk of the appellate court in accordance
with Tenn. R. App. P. 5(a). We took these motions under advisement in October
1996 in anticipation that the Tennessee Supreme Court would address this
question. Rather than delaying the disposition of this appeal, we have elected to
proceed without the high court’s guidance.


       Throughout their eighteen-year life span, the Tennessee Rules of Appellate
Procedure have not consistently required appellants to file a copy of the notice of
appeal with the appellate court clerk. When the rules first became effective in
1979, Tenn. R. App. P. 5(a) required the appellant in a civil action to “serve a
copy of the notice of appeal . . . on the clerk of the appellate court designated in
the notice of appeal.” The Tennessee Supreme Court removed the requirement in
1984 because it “accomplished no vital purpose, but instead resulted in a surplus
of notices where the appeal was abandoned because of settlement or otherwise.”
Tenn. R. App. P. 5, cmt. to 1984 Amendment. In 1991, the Tennessee Supreme


       1
         (...continued)
to amend, Mr. Draper’s lawyer explained that he had been retained to represent Pig Improvement
“for the use and benefit of Continental Casualty Company.” In addition to filing a motion to
amend Mr. Draper’s complaint, the lawyer also prepared and filed a separate suit wherein Pig
Improvement asserted its subrogation claims against Messrs. Reaver and Tacey. The later
dismissal of that suit is the subject of another appeal.

                                             -3-
Court restored the language to Tenn. R. App. P. 5(a) that it had removed seven
years earlier.


      The 1991 amendment to Tenn. R. App. P. 5(a) had little noticeable effect
on practice before the intermediate appellate courts. In fact, it passed largely
without notice until the Cobb v. Beier decision. Within weeks after Cobb v. Beier,
this court began to receive a steady stream of motions to dismiss appeals for
failure to comply with the reincarnated requirement that the notice of appeal be
filed with the clerk of the appellate court in addition to the trial court clerk. None
of these motions contained a colorable showing of prejudice.


      The Tennessee Supreme Court decided to review Cobb v. Beier and on
January 23, 1997, entered an order amending Tenn. R. App. P. 5(a) to shift the
obligation of filing the notice of appeal with the clerk of the appellate court from
the appellant to the clerk of the trial court. The proposed advisory commission
comment notes that “[s]ervice of a copy [of the notice of appeal] on the appellate
clerk is not jurisdictional.” This proposed rule, if adopted, effectively eliminates
prospective difficulties caused by failing to file a copy of the notice of appeal with
the appellate court clerk. The pending decision by the Tennessee Supreme Court
will provide authoritative guidance for the cases that are currently pending on
appeal.


      The Cobb v. Beier decision is not the first time this court has addressed the
consequences of failing to file a copy of a notice of appeal with the appellate court
clerk. The Middle Section addressed this issue in 1984 in the context of the first
reincarnation of the requirement and held that failing to file a copy of the notice
of appeal with the clerk of the appellate court was not fatal to an appeal, as long
as a timely notice of appeal had been filed with the clerk of the trial court and
served on opposing counsel. Holder v. Holder, App. No. 84-117-II, slip op. at 4
(Tenn. Ct. App. Sept. 5, 1984) (no Tenn. R. App. P. 11 application filed).
Recently, we cited Holder v. Holder as a basis for pretermitting the issue raised
by the failure to file a notice of appeal with the clerk of the appellate court.
Venture Express, Inc. v. Raeford Trucking Co., App. No. 01A01-9608-CH-00352,
1997 WL 71813, at *1-2 (Tenn. Ct. App. Feb. 21, 1997).

                                         -4-
      The timely filing of a notice of appeal in a civil case is, without question,
mandatory and jurisdictional. First Nat’l Bank v. Goss, 912 S.W.2d 147, 148
(Tenn. Ct. App. 1995). Tenn. R. App. P. 4(a)’s requirement that the notice of
appeal be filed within thirty days applies only to notices filed with the clerk of the
trial court. Neither Tenn. R. App. P. 4 nor Tenn. R. App. P. 5 requires that the
notice of appeal be filed with the clerk of the appellate court within any particular
time. In the absence of such a requirement, we are reluctant to dismiss an appeal
simply because an appellant delayed filing a notice of appeal with the clerk of the
appellate court.


      With deference to our Eastern Section colleagues, we adhere to our earlier
Holder v. Holder decision. Mr. Draper prepared and filed a timely notice of
appeal with the clerk of the trial court and served a copy of this notice of appeal
on his adversaries. The record contains no colorable proof that Messrs. Reaver
and Tacey were actually prejudiced by Mr. Draper’s oversight. Accordingly, we
invoke Tenn. R. App. P. 2 to relieve Mr. Draper from the requirement of filing a
timely notice of appeal with the clerk of the appellate court.


                                         III.


      This appeal involves a common occurrence - a person injured during the
course of employment by the negligence of third-parties. Depending on the facts,
these circumstances may give rise to several distinct claims against the negligent
third-parties. The injured employee may seek to recover for his personal injuries
and for the damage to his property. The employer of the injured employee may
have a claim for damage to its personal property and may also have a derivative
claim arising out of its employee’s personal injuries. This derivative claim,
commonly referred to as a subrogation claim, is not necessarily as broad as the
employee’s personal injury claim but rather is limited to the worker’s
compensation benefits paid to the employee. Tenn. Code Ann. § 50-6-112(c)(1);
Cross v. Pan Am World Servs., Inc., 749 S.W.2d 29, 30 (Tenn. 1987), rev’d on
other grounds, 867 S.W.2d 312, 315 (Tenn. 1993); Aetna Cas. & Sur. Co. v.
Gilreath, 625 S.W.2d 269, 273 (Tenn. 1981).



                                         -5-
      Different statutes of limitations apply to each of these claims. The
employee must file his or her personal injury claims within one year from the date
of injury. Tenn. Code Ann. § 50-6-112(d)(1) (1991); Tenn. Code Ann. § 28-3-
104(a)(1) (Supp. 1996); Craig v. R.R. Street & Co., 794 S.W.2d 351, 357-58
(Tenn. Ct. App. 1990). The employee and the employer must file their property
damage claims within three years from the date that their property was damaged.
Tenn. Code Ann. § 28-3-105(1) (Supp. 1996). Finally, if an employee does not
file a personal injury claim, the employer must file its subrogation claim within
eighteen months from the date of the employee’s injury. Tenn. Code Ann. § 50-6-
112(d)(2); Craig v. R.R. Street & Co., 794 S.W.2d at 358.


      A normal statute of limitations bars only the remedy, not the substantive
right, Watts v. Putnam County, 525 S.W.2d 488, 492 (Tenn. 1975); Pacific
Eastern Corp. v. Gulf Life Holding Co., 902 S.W.2d 946, 955 (Tenn. Ct. App.
1995), but not so with an employee’s claims against third-parties for personal
injuries sustained during the course of employment. Employees who fail to file
their personal injury action within one year from their injury not only lose their
remedy but also their substantive claim. By operation of Tenn. Code Ann. § 50-6-
112(d)(2), these personal injury claims are assigned to the employer one year after
the employee’s injury. Craig v. R.R. Street & Co., 794 S.W.2d at 358.


                                       IV.
       DRAPER’S PERSONAL INJURY AND PROPERTY DAMAGE CLAIMS


      We turn our attention first to Mr. Draper’s personal injury and property
damage claims. The trial court dismissed these claims on the ground that they
were time-barred because Mr. Draper filed suit more than one year after he
sustained the injuries. It is undisputed that Mr. Draper was injured on October 22,
1994 and that he filed suit on November 7, 1995. By the time Mr. Draper filed
suit, not only had the one-year statute of limitations expired, but his personal
injury claims had also passed by operation of law to Pig Improvement.
Accordingly, the trial court was undoubtedly correct when it dismissed Mr.
Draper’s personal injury claims.



                                       -6-
       Mr. Draper’s property damage claims do not meet the same fate because
they are governed by the three-year, as opposed to the one-year, statute of
limitations. Mr. Draper’s suit was well within the three-year limitations period,
and thus it is not time-barred. In addition, these claims could not have been
assigned to Pig Improvement because Tenn. Code Ann. § 50-6-112(d)(2) does not
apply to property damage claims. Accordingly, we hold that the trial court
correctly dismissed Mr. Draper’s personal injury claims but erred by dismissing
his property damage claims.


                                          V.
                  PIG IMPROVEMENT’S SUBROGATION CLAIMS


      We now turn to Pig Improvement’s subrogation claims. The maladroit
efforts to assert these claims do not comply with the worker’s compensation
statute or the rules of civil procedure. Nonetheless, the trial court should have
considered the substance rather than the form of the motion to amend the
complaint and should have permitted Pig Improvement to intervene in this case
rather than requiring it to file a separate suit.


       The worker’s compensation statutes permit employers to assert their
subrogation claims in two ways. They may proceed in their own name or in the
name of their employee. Tenn. Code Ann. § 50-6-112(d)(2). If they decide to
proceed in their own name, they may either intervene in their employee’s lawsuit,
or they may file a separate suit in their own name. Craig v. R.R. Street & Co., 794
S.W.2d at 358. For reasons not apparent in the record, Pig Improvement did not
file a Tenn. R. Civ. P. 24.01 motion to intervene as of right. Instead, Mr. Draper
filed a motion to amend his complaint to add Pig Improvement as a plaintiff.


       The motion to amend was a poor procedural choice because the trial court
had already determined that Mr. Draper’s personal injury claims against Mr.
Reaver were time-barred and because what remained of Mr. Draper’s personal
injury claims had already passed by operation of law to Pig Improvement.
Nonetheless, the trial court should have construed the motion to amend in light
of its substance rather than its form. Bemis Co. v. Hines, 585 S.W.2d 574, 576

                                          -7-
(Tenn. 1979); Pickard v. Ferrell, 45 Tenn. App. 460, 471, 325 S.W.2d 288, 292-
93 (1959).      Since the same lawyer represented both Mr. Draper and Pig
Improvement, the trial court should have treated the motion to amend the
complaint as a motion to intervene and should have permitted Pig Improvement
to assert its subrogation claim in the proceeding.


                                       VI.


         We affirm the summary dismissal of Mr. Draper’s personal injury claims
but vacate the dismissal of his property damage claims. We also vacate the denial
of the motion to amend and remand the case to the trial court with directions to
enter an order permitting Pig Improvement to intervene in this case pursuant to
Tenn. Code Ann. § 50-6-112(c) to pursue its subrogation rights. We tax the costs
of this appeal in equal proportions to Paul Glen Draper and his surety and to
Bryan Essary and Richard Alan Tacey, Jr. for which execution, if necessary, may
issue.


                                              ____________________________
                                              WILLIAM C. KOCH, JR., JUDGE

CONCUR:

________________________________
HENRY F. TODD, P.J., M.S.

________________________________
SAMUEL L. LEWIS, JUDGE




                                       -8-
