                                                                                          08/28/2020
               IN THE COURT OF APPEALS OF TENNESSEE
                           AT NASHVILLE
                                  July 9, 2020 Session

    VOLODYMYR HELYUKH, ET AL. v. BUDDY HEAD LIVESTOCK &
                    TRUCKING, INC.

                  Appeal from the Circuit Court for Wilson County
                   No. 2017-CV-695 John D. Wootten Jr., Judge
                     ___________________________________

                           No. M2019-02301-COA-R9-CV
                       ___________________________________

The dispositive issue in this personal injury action is whether the claims against the
defendant trucking company for the tortious acts of its employee/truck driver are time-
barred under Abshure v. Methodist Healthcare-Memphis Hospitals, 325 S.W.3d 98 (Tenn.
2010) or saved by the commencement of a new action under Tenn. Code Ann. § 28-1-105,
Tennessee’s “savings statute.” After the plaintiffs commenced the new action, the company
filed a motion to summarily dismiss the complaint, asserting the plaintiffs’ claims against
the employee were procedurally barred before the new action was commenced. The trial
court denied the motion because the first action was instituted before the plaintiffs’ right
of action against the employee became extinguished by operation of law, and the second
complaint was timely filed pursuant to the savings statute. For the same reason, we affirm
and remand for further proceedings.

      Tenn. R. App. P. 9 Interlocutory Appeal; Judgment of the Circuit Court
                             Affirmed and Remanded

FRANK G. CLEMENT JR., P.J., M.S., delivered the opinion of the Court, in which ANDY D.
BENNETT and W. NEAL MCBRAYER, JJ., joined.

Nathan E. Shelby and Jordan K. Gibson, Nashville, Tennessee, for the appellant, Buddy
Head Livestock & Trucking, Inc.

Ronald J. Berke, Chattanooga, Tennessee, for the appellees, Volodymyr and Mariah
Helyukh.
                                                OPINION

                             FACTS AND PROCEDURAL BACKGROUND

       On November 16, 2011, Volodymyr Helyukh, a long-distance truck driver,
sustained injuries when he collided with an overturned tractor-trailer on Interstate 40 in
western Tennessee. The overturned vehicle was owned by Buddy Head Livestock &
Trucking (“Defendant”) and operated by its employee, Michael Heller.

       In May 2012, Mr. Helyukh and his wife, Mariah Helyukh (collectively,
“Plaintiffs”), commenced a personal injury action against Defendant and its
employee/truck driver, Mr. Heller, in the Henderson County Circuit Court.1 The complaint
alleged that Mr. Heller’s negligence caused Mr. Helyukh’s injuries and that Defendant was
vicariously liable because Mr. Heller was acting in the course of his employment with
Defendant. Summons was issued for both defendants, and Defendant was served; however,
Plaintiffs were unable to obtain service of process on Mr. Heller.

       In August 2013, Plaintiffs voluntarily dismissed their claims against Mr. Heller but
continued to prosecute their claims against Defendant. In March 2015, Defendant moved
for summary judgment based on Mr. Heller’s uncontradicted affidavit that stated an
unidentified driver caused the accident by forcing Mr. Heller off the road. The trial court
determined Mr. Heller’s affidavit negated the breach-of-duty element and granted
Defendant’s motion. Plaintiffs appealed. On appeal, we found reasonable persons could
differ as to whether Mr. Heller acted reasonably under the described circumstances and
reversed the judgment. See Helyukh v. Buddy Head Livestock & Trucking, Inc., No.
W2015-01354-COA-R3-CV, 2017 WL 1483303, at *4–5 (Tenn. Ct. App. Apr. 24, 2017).

        Shortly after remand, Plaintiffs voluntarily dismissed the complaint. Three months
after dismissing their Henderson County Circuit Court action, Plaintiffs commenced a new
action against Defendant by filing their complaint in the Wilson County Circuit Court.

       In October 2019, Defendant moved for summary judgment on the new action.
Relying on the Tennessee Supreme Court’s decision in Abshure v. Methodist Healthcare-
Memphis Hospitals, 325 S.W.3d 98 (Tenn. 2010), Defendant argued that it could no longer
be held vicariously liable for Mr. Heller’s acts because Plaintiffs’ right of action against
Mr. Heller was procedurally barred before Plaintiffs commenced the new action.




        1
           Plaintiffs also named a third driver, Jack Grady, and USF Holland as defendants in the first action.
Plaintiffs later voluntarily dismissed their claims against them. Neither Mr. Grady nor USF Holland was
named as a defendant in the new action, and they are not parties to this appeal.


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      In its Order of December 18, 2019, the trial court denied the motion on the ground
that Plaintiffs commenced the new action against Defendant in accordance with
Tennessee’s savings statute:

       Upon review of the briefs, argument of counsel, and the entire record, the
       court finds that Plaintiff[s’] claim against [Mr.] Heller, agent of
       [Defendant] . . . , was barred by operation of law at the time this lawsuit was
       commenced, on December 27, 2017. The Court also finds that there is no
       Tennessee precedent to guide its decision when a lawsuit is subject to
       dismissal under Abshure v. Methodist Healthcare-Memphis Hospitals, 325
       S.W.3d 98, 103 (Tenn. 2010), but the lawsuit was filed in reliance upon Tenn.
       Code Ann. § 28-1-105 (the “saving statute”). Considering the “remedial”
       nature of the saving statute . . . , the Court holds that Defendant[’s] Motion
       for Summary Judgment should be denied.

       The trial court and this court subsequently granted Defendant permission to pursue
an interlocutory appeal pursuant to Tenn. R. App. P. 9.

                                  STANDARD OF REVIEW

        The material facts in this case are undisputed. Thus, a “motion for summary
judgment provides a proper vehicle for addressing the dispositive legal issues presented by
the parties.” Abshure, 325 S.W.3d at 103. This court reviews a trial court’s ruling on a
motion for summary judgment de novo with no presumption of correctness. See Rye v.
Women’s Care Ctr. of Memphis, MPLLC, 477 S.W.3d 235, 250 (Tenn. 2015). Accordingly,
we must make a fresh determination of whether Defendant demonstrated “that it is entitled
to a judgment as a matter of law.” Abshure, 325 S.W.3d at 103.

                                         ANALYSIS

       Defendant contends the trial court erred by denying its Motion for Summary
Judgment because Tennessee’s savings statute does not “save” a plaintiff’s legal remedy
against a principal when the plaintiff’s right of action against the agent is already barred
by the applicable statute of limitations. Plaintiffs respond that their claims were preserved
by the savings statute, regardless of whether the limitations period on their claims against
Mr. Heller had lapsed in the meantime. In summary, the issue before us is whether a
common-law exception to the vicarious liability doctrine prevents a plaintiff from
benefiting from the savings statute.

        In Abshure, the Tennessee Supreme Court recognized several common-law
exceptions to the general rule that a principal may be held vicariously liable for the
negligent acts of its agent. See id. at 111. As relates to this case, the Court noted that a
plaintiff may not assert a vicarious liability claim “when the plaintiff’s claim against the
agent is procedurally barred by operation of law before the plaintiff asserts [the] vicarious

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liability claim against the principal.” Id. at 106 (emphasis added). In other words, a plaintiff
may not assert “a new vicarious liability claim against a principal after [the plaintiff’s]
claims against the agent have become barred by operation of law.” Id. at 111 (emphasis
added). This “procedural limitation” reflects a traditional policy that “plaintiffs should not
be permitted to engage in an ‘encircling movement’ against the principal when they cannot
pursue a ‘frontal attack’ on the agent.” Id. at 110 (citations omitted).

        Defendant contends the procedural limitation recognized in Abshure should be
extended to the circumstances of this case, where Plaintiffs voluntarily dismiss and re-file
their claims against Defendant after the claims against Mr. Heller are barred. Defendant
reasons that the new action “must stand or fall on its own.” See Cartwright v. DMC-
Memphis Inc., 468 S.W.3d 517, 528 (Tenn. Ct. App. 2014) (“Once re-filed pursuant to the
savings statute, the ‘new action must stand or fall on its own.’” (quoting Robles v.
Vanderbilt Univ. Med. Ctr., No. M2010-01771-COA-R3-CV, 2011 WL 1532069, at *3
(Tenn. Ct. App. Apr. 19, 2011))). We respectfully disagree.

       In Abshure, the Court recognized that joinder of the agent is unnecessary to hold the
principal vicariously liable for the agent’s negligent acts. 325 S.W.3d at 105. The Court
also explained that “the extinguishment of the plaintiff’s claims against the agent, by
voluntary dismissal or otherwise, ‘merely produce[s] the same effect as if the [agent]
had never been sued.’” Id. at 111 (emphasis added) (quoting Rankhorn v. Sealtest Foods,
479 S.W.2d 649, 652 (Tenn. Ct. App. 1971)).

       The savings statute reads in pertinent part:

       If the action is commenced within the time limited by a rule or statute of
       limitation, but the judgment or decree is rendered against the plaintiff upon
       any ground not concluding the plaintiff’s right of action, . . . the plaintiff . . .
       may . . . commence a new action within one (1) year[.]

Tenn. Code Ann. § 28-1-105(a). Here it is undisputed that Plaintiffs’ action was
commenced within the limitations period, the voluntary dismissal of the Henderson County
case did not conclude Plaintiffs’ right of action, and Plaintiffs commenced the new action
in Wilson County within one year of the voluntary dismissal without prejudice. Thus,
Plaintiffs are entitled to the benefits afforded by the savings statute.

        Defendant cites no authority for the proposition that a plaintiff may not take
advantage of the savings statute to re-file a vicarious liability claim if the plaintiff did not
join the agent in the first action. Thus, we conclude that Plaintiffs’ voluntary dismissal of
their claims against Mr. Heller in the first action produced the same effect as if Mr. Heller
had never been sued. See Abshure, 325 S.W.3d at 111.

      It is also significant and well established that the savings statute is remedial and
“must be given a broad and liberal construction.” See, e.g., Circle C Constr., LLC v. Nilsen,

                                              -4-
484 S.W.3d 914, 919 (Tenn. 2016). In Cronin v. Howe, 906 S.W.2d 910 (Tenn. 1995), the
Tennessee Supreme Court recognized this provision should be construed according to the
statute’s spirit:

       Many years ago, . . . this Court recognized that the statutory language must
       be applied according to the spirit of the statute. We said:

              The statute has not merely letter but a spirit. That spirit is
              manifested in the history of the statute . . . . It is that a plaintiff
              shall not be finally cast out by the force of any judgment or
              decree whatsoever, not concluding his right of action, without
              an opportunity to sue again within the brief period limited.

       Nashville, C & St. L. Ry. v. Bolton, 134 Tenn. 447, 184 S.W. 9, 11 (1916).
       Thus, this Court has long been committed to the view that the “savings
       statute” is remedial and should be liberally construed in furtherance of
       its purpose and in order to bring cases within its spirit and fair intention. Kee
       v. Shelter Ins., 852 S.W.2d 226, 228 (Tenn. 1993). In effect, the savings
       statute confers upon a plaintiff who files a second action within one year of
       a voluntary non-suit of a first action the same procedural and substantive
       benefits that were available to the plaintiff in the first action. Dukes v.
       Montgomery County Nursing Home, 639 S.W.2d at 913.

Id. at 912–13 (emphasis added).

        The Plaintiffs commenced the first action within the one-year limitations period for
personal injury actions. Several years later, Plaintiffs voluntarily nonsuited that action and
re-filed three months later. Because the savings statute applies, we affirm the trial court’s
decision to deny Defendant’s Motion for Summary Judgment.

                                       IN CONCLUSION

      The judgment of the trial court is affirmed, and this matter is remanded for further
proceedings. Costs of appeal are assessed against Buddy Head Livestock & Trucking, Inc.



                                                       ________________________________
                                                       FRANK G. CLEMENT JR., P.J., M.S.




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