                     IN THE SUPREME COURT OF TENNESSEE
                                AT NASHVILLE
                            September 1, 2011 Session at Knoxville

   MICHAEL LIND v. BEAMAN DODGE, INC., d/b/a BEAMAN DODGE
                     CHRYSLER JEEP ET AL.

            Appeal by Permission from the Court of Appeals, Middle Section
                         Circuit Court for Rutherford County
                          No. 59485     Royce Taylor, Judge


                  No. M2010-01680-SC-S09-CV - Filed December 15, 2011


C ORNELIA A. C LARK, C.J., concurring in the judgment.

        I concur in the judgment of the Court, but I do not join the majority’s conclusion that
a product liability action based on strict liability does not accrue against a non-manufacturing
seller until the manufacturer “has been judicially declared insolvent.” Tenn. Code Ann. § 29-
28-106(b) (2000). Rather, I would hold that a product liability cause of action accrues “on
the date of the personal injury,” as provided in Tennessee Code Annotated section 28-3-
104(b)(1) (2000). However, I would hold that, with respect to claims against a non-
manufacturing seller based on strict liability, the one-year statute of limitations1 is tolled until
the manufacturer “has been judicially declared insolvent.” Tenn. Code Ann. § 29-28-106(b).

                                            Analysis
        This appeal involves an analysis of several statutes, none of which provides a
definitive answer to the question of first impression presented. The analysis of this issue
must be guided by the familiar rules of statutory construction. The role of courts in
construing statutes is to determine legislative intent and to effectuate legislative purpose. See
Lee Med., Inc. v. Beecher, 312 S.W.3d 515, 526 (Tenn. 2010); In re Estate of Tanner, 295


        1
          See Tenn. Code Ann. § 28-3-104(b)(2) (“[I]n products liability cases . . . [n]o person shall be
deprived of the right to maintain a cause of action until one (1) year from the date of the injury.”). See also
Tenn. Code Ann. § 29-28-103(a) (2000) (“Any action against a manufacturer or seller of a product for injury
to person or property caused by its defective or unreasonably dangerous condition must be brought within
the period fixed by §§ 28-3-104, 28-3-105, 28-3-202 and 47-2-725, but notwithstanding any exceptions to
these provisions, it must be brought within six (6) years of the date of injury, in any event, the action must
be brought within ten (10) years from the date on which the product was first purchased for use or
consumption, or within one (1) year after the expiration of the anticipated life of the product, whichever is
the shorter, except in the case of injury to minors whose action must be brought within a period of one (1)
year after attaining the age of majority, whichever occurs sooner.”)
S.W.3d 610, 613 (Tenn. 2009). The words of the statute are of primary importance and must
be given their natural and ordinary meaning in the context in which they appear and in light
of the statute’s general purpose. See Lee Med., Inc., 312 S.W.3d at 526; Hayes v. Gibson
Cnty., 288 S.W.3d 334, 337 (Tenn. 2009); Waldschmidt v. Reassure Am. Life Ins. Co., 271
S.W.3d 173, 176 (Tenn. 2008); State v. Flemming, 19 S.W.3d 195, 197 (Tenn. 2000). When
a statute’s text is clear and unambiguous, courts do not look beyond the language of the
statute to ascertain its meaning. See Lee Med., Inc., 312 S.W.3d at 527; Green v. Green, 293
S.W.3d 493, 507 (Tenn. 2009).

        When statutes conflict, either in language or application, courts should construe each
statute reasonably, in a manner that avoids conflict and facilitates the harmonious operation
of the law. See Lee Med., Inc., 312 S.W.3d at 527; Sallee v. Barrett, 171 S.W.3d 822, 828
(Tenn. 2005); Frazier v. E. Tenn. Baptist Hosp., Inc., 55 S.W.3d 925, 928 (Tenn. 2001). A
special statute, or a special provision of a particular statute, should be construed to prevail
over a general provision in another statute or a general provision in the same statute. See
State v. Davis, 173 S.W.3d 411, 415 (Tenn. 2005); Arnwine v. Union Cnty. Bd. of Educ.,
120 S.W.3d 804, 809 (Tenn. 2003).

       In applying the foregoing rules, courts may “presume that the General Assembly did
not intend to enact a useless statute.” See Lee Med., Inc., 312 S.W.3d at 527; State v.
Jackson, 60 S.W.3d 738, 742 (Tenn. 2001). Courts may also presume that the General
Assembly is aware of its own prior enactments. See Lee Med., Inc., 312 S.W.3d at 527;
Colonial Pipeline Co. v. Morgan, 263 S.W.3d 827, 836 (Tenn. 2008); Hicks v. State, 945
S.W.2d 706, 707 (Tenn. 1997). When necessary to resolve a statutory ambiguity or conflict,
courts may consider matters beyond the statutory text, including public policy, historical facts
relevant to the enactment of the statute, the background and purpose of the statute, and the
entire statutory scheme. See Lee Med., Inc., 312 S.W.3d at 527-28. However, these
non-codified external sources “cannot provide a basis for departing from clear codified
statutory provisions.” Lee Med., Inc., 312 S.W.3d at 528 (citing State ex rel. Manner v.
Leech, 588 S.W.2d 534, 539 (Tenn. 1979)).

        Applying the foregoing rules, I am unable to agree with the majority’s conclusion that
Plaintiff Michael Lind’s strict liability claim against Beaman Dodge, Inc., (“Beaman”), the
automobile dealership where he purchased the truck, did not accrue until Daimler Chrysler
Corp. (“Chrysler”) had “been judicially declared insolvent.” Tenn. Code Ann. § 29-28-
106(b). In my view, the majority’s conclusion is inconsistent with the plain and
unambiguous language of another, more specific, statute declaring: “[I]n products liability
cases . . . [t]he cause of action for injury to the person shall accrue on the date of the
personal injury, not the date of the negligence or the sale of a product.” Tenn. Code Ann.
§ 28-3-104(b)(1) (emphasis added). This statute leaves no room for doubt that the Plaintiff’s
cause of action, including his claim based on a theory of strict liability, accrued on March

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28, 2006, the date he suffered personal injuries from his truck allegedly self-shifting into
reverse. While I part company with the majority as to when Plaintiff’s cause of action
accrued, I agree, for the reasons stated below, that Plaintiff’s strict liability claim against
Beaman is not time-barred.

        The General Assembly has provided non-manufacturing sellers, like Beaman, with
an exemption from product liability actions based on strict liability, and this exemption
applies except in certain limited circumstances. One exception to the exemption from
liability is when the manufacturer “has been judicially declared insolvent.” Tenn. Code Ann.
§ 29-28-106(b). By adopting this “‘insolvency’ exception,” the General Assembly intended
“to insure that an injured consumer can look to the seller if he cannot collect a judgment from
the manufacturer.” Seals v. Sears, Roebuck & Co., 688 F. Supp. 1252, 1254 (E.D. Tenn.
1988) (discussing legislative history of the exception); see also Braswell v. AC & S, Inc., 105
S.W.3d 587, 589 (Tenn. Ct. App. 2002) (stating that the insolvency exception was designed
“to ensure that the injured consumer could maintain a strict liability action against whomever
was most likely to compensate [the injured consumer] for his or her injuries”).

        In order both to fulfill the legislative purpose and intent of the insolvency exception
and to avoid a conflict with the plain language of Tennessee Code Annotated section 28-3-
104(b)(1) defining accrual as the date of the personal injury, I would hold that, as to
Plaintiff’s strict liability claim against Beaman, the one-year statute of limitations was tolled
until Chrysler had “been judicially declared insolvent.” Tenn. Code Ann. § 29-28-106(b).2
While no Tennessee court has discussed this issue, tolling the statute of limitations to
effectuate a legislative insolvency exception is the approach recommended in the Products
Liability Restatement,3 and this approach has been adopted in at least one other jurisdiction.4
Tolling is a concept familiar to Tennessee law, and in fact, the General Assembly has
expressly approved tolling the statute of limitations if, at the time the cause of action accrued,
the person entitled to commence the action was unable to do so because of age or unsound




        2
          As the majority recognizes, the parties do not dispute that Chrysler has been “judicially declared
insolvent”; thus, interpreting the foregoing statutory language is not necessary to resolve this appeal. But
see Seals, 688 F. Supp. at 1254-59 (discussing and interpreting the phrase “judicially declared insolvent”).
        3
           See Restatement (Third) of Torts: Products Liability § 1 cmt. e (1998) (discussing the interplay
between the statute of limitations and the insolvency exception and stating that “[o]ne possible solution could
be to toll the statute of limitations against nonmanufacturers so that they may be brought in if necessary”).
This Court has previously looked to the Restatement Third for guidance as to tort law in Tennessee. See,
e.g., Mercer v. Vanderbilt Univ., Inc., 134 S.W.3d 121, 129 (Tenn. 2004).
        4
          See Crego v. Baldwin-Lima-Hamilton Corp., No. 16515, 1998 WL 80240, at *5-6 (Ohio Ct. App.
Feb. 27, 1998).

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mind. See Tenn. Code Ann. § 28-1-106(a) (2000).5 Finally, tolling the statute of limitations
is not contrary to Braswell, in which the Court of Appeals stated: “the General Assembly
intended the limitation period against the seller would begin to run at the time the
manufacturer was adjudicated bankrupt.” Braswell, 105 S.W.3d at 590. This statement is
correct, under either the tolling approach I would apply or the accrual approach the majority
adopts.6 The Court of Appeals in Braswell simply did not elaborate upon the basis for its
conclusion.

        Applying the tolling approach in the context of this appeal produces the following
conclusions. Plaintiff’s product liability action accrued on March 28, 2006, the date he
suffered personal injuries from his truck allegedly self-shifting into reverse. The one-year
statute of limitations began to run when the cause of action accrued. Nonetheless, with
respect to Plaintiff’s strict liability claim against Beaman, the statute of limitations was tolled
until Chrysler had been judicially declared insolvent. Thus, Plaintiff’s 2009 complaint, filed
less than four months after Chrysler filed for bankruptcy, is not time-barred.7 Because the
one-year statute of limitations was tolled, the savings statute, see Tenn. Code Ann. § 28-1-
105(a) (2000),8 has no bearing on the timeliness of Plaintiff’s 2009 strict liability claim
against Beaman.




        5
          Section 28-1-106 states:
                 If the person entitled to commence an action is, at the time the cause of action
        accrued, either under the age of eighteen (18) years, or of unsound mind, such person, or
        such person’s representatives and privies, as the case may be, may commence the action,
        after the removal of such disability, within the time of limitation for the particular cause of
        action, unless it exceeds three (3) years, and in that case within three (3) years from the
        removal of such disability.
        6
           At least one commentator has characterized Braswell as adopting the tolling approach
recommended in the Products Liability Restatement, which I would apply. See David G. Owen, Special
Defenses in Modern Products Liability Law, 70 Mo. L. Rev. 1, 35 n.164 (2005) (describing Braswell as
holding that a “statute which precluded strict liability in tort claim against seller unless manufacturer is
insolvent tolled statute of limitations until manufacturer filed for bankruptcy”).
        7
          Even where the statute of limitations is tolled until the manufacturer has been judicially declared
insolvent, the statutes of repose provided in Tennessee Code Annotated section 29-28-103 continue to apply
and may still bar the cause of action.
        8
          The savings statute provides in relevant 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, from time to time, commence a new
        action within one (1) year after the reversal or arrest.


                                                      -4-
        As the majority recognizes, however, the savings statute is relevant to the negligence-
based claim Plaintiff asserted against Beaman in count two of his 2009 complaint. While
non-manufacturing sellers are provided a broad statutory exemption from strict liability
claims, such sellers are provided a more narrow statutory exemption from liability for
negligence-based claims. This exemption is applicable only “when the product is acquired
and sold by the seller . . . under circumstances in which the seller is afforded no reasonable
opportunity to inspect the product in such a manner which would or should, in the exercise
of reasonable care, reveal the existence of the defective condition.” Tenn. Code Ann. § 29-
28-106(a). As with strict liability, an insolvency exception to the foregoing exemption
allows for imposition of liability for negligence-based claims upon a non-manufacturing
seller that had no reasonable opportunity to inspect the product in “[a]ctions where the
manufacturer has been judicially declared insolvent.” Tenn. Code Ann. § 29-28-106(a)(3).

        As the majority correctly points out, however, the exemption from liability provided
in Tennessee Code Annotated section 29-28-106(a) has never applied to Plaintiff’s
negligence-based claim against Beaman. In other words, Beaman had a reasonable
opportunity to inspect the truck it sold Plaintiff and was never exempt from liability for a
negligence-based claim. Thus, as to the negligence-based claim asserted in count 2 of
Plaintiff’s 2009 complaint, the statute of limitations was not tolled until Chrysler had been
judicially declared insolvent. The cause of action accrued on March 28, 2006. Plaintiff
timely filed a lawsuit on March 19, 2007, asserting his negligence-based claim against
Beaman, but Plaintiff failed to file a new action within one year of the December 21, 2007
voluntary nonsuit, as the savings statute required. See Tenn. Code Ann. § 28-1-105(a).
Thus, I agree with the majority that Plaintiff’s negligence-based claim against Beaman is
time-barred.

       I am authorized to state that Justice Koch concurs in this opinion.




                                                    ___________________________________
                                                    CORNELIA A. CLARK, CHIEF JUSTICE




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