                    IN THE SUPREME COURT OF TENNESSEE
                               AT KNOXVILLE
                                     Heard at Cleveland1
                                   November 7, 2002 Session

            ANTHONY McNABB, ET AL. v. HIGHWAYS, INC., ET AL.

                        Appeal by Permission from the Court of Appeals
                                Circuit Court for Polk County
                        Nos. 3596 and 3597    Lawrence Puckett, Judge



                       No. E2001-00867-SC-R11-CV - Filed March 3, 2003


We granted this appeal to determine whether the trial court erred in granting summary judgment to
the defendant based on the plaintiff’s failure to join all of the tortfeasors in a single proceeding under
Samuelson v. McMurtry, 962 S.W.2d 473 (Tenn. 1998). The Court of Appeals reversed the trial
court’s judgment after concluding that the plaintiff’s settlement with one tortfeasor did not require
dismissal of the plaintiff’s complaint against a second tortfeasor. After reviewing the record and the
applicable authority, we hold that the trial court erred in granting summary judgment to the defendant
based on the plaintiff’s failure to join the tortfeasors in a single proceeding and that Samuelson is
not applicable to the facts of this case. We therefore affirm the Court of Appeals’ judgment and
remand to the trial court for further proceedings.

                  Tenn. R. App. P. 11 Appeal by Permission; Judgment of the
                   Court of Appeals Affirmed; Remanded to the Trial Court

E. RILEY ANDERSON, J., delivered the opinion of the court, in which FRANK F. DROWOTA , III, C.J.,
and ADOLPHO A. BIRCH, JR., JANICE M. HOLDER, and WILLIAM M. BARKER, JJ., joined.

Donald W. Strickland, Chattanooga, Tennessee, for the appellant, Highways, Inc.

Andrew R. Tillman, Knoxville, Tennessee, and Roger E. Jenne, Cleveland, Tennessee, for the
appellees, Anthony McNabb and wife, Sherry McNabb, and Paul Harrison.

                                               OPINION



        1
        Oral argument was heard in this case on November 7, 2002, in Cleveland, Bradley County,
Tennessee, as part of this Court’s S.C.A.L.E.S. (Supreme Court Advancing Legal Education for
Students) project.
                                            Background

        On May 8, 1998, Ronald Morrison was driving his motor vehicle southbound on Highway
411 in Polk County, Tennessee, through a highway construction zone when he hit a concrete barrier,
crossed the center line of the highway, and struck a car driven by the plaintiff, Anthony McNabb,
in the northbound lane of traffic. Both McNabb and his passenger, Paul Harrison, were injured in
the accident.

        Later, on August 21, 1998, the plaintiffs-appellees McNabb and Harrison filed separate but
identical complaints in the Circuit Court for Polk County, Tennessee, solely against Morrison. The
complaints alleged that Morrison was negligent in driving his vehicle across the center line of the
highway, failing to keep his car under control, and failing to yield the right of way, and that as a
result, the appellees suffered personal injuries. Neither complaint mentioned the appellant,
Highways, Inc., or charged it with negligence. Both McNabb and Harrison later negotiated separate
settlements of these lawsuits against Morrison.2

        On January 20, 1999, while the first lawsuits were still pending against Morrison, the
appellees McNabb and Harrison filed separate but identical complaints in the Circuit Court for Polk
County, Tennessee, against the appellant, Highways, Inc. (“Highways”).3 Each complaint alleged
that Highways negligently obstructed the shoulder of the highway with a concrete barrier, failed to
slow traffic or to warn drivers of the barrier’s existence, and therefore caused the accident which
resulted in injuries to the appellees McNabb and Harrison. Highways’ answer to each of the
complaints asserted that the accident was the result of Morrison’s reckless driving and negligent
failure to stay in his proper lane of traffic. The answer further stated that “under the doctrine of
comparative fault, Mr. Morrison is solely liable to the plaintiff for the damages proximately caused
by [his] negligence.” Highways took no action to consolidate the first suits against Morrison with
the later suits against it.
        Highways later filed a motion for summary judgment on the ground that McNabb and
Harrison improperly filed separate complaints against Morrison and Highways instead of joining all
of the defendants in a single action. The trial court granted the motion, concluding that the
“plaintiffs were not permitted to bring separate causes of action against Highways after filing actions
against Ronald Morrison.” The trial court, citing Samuelson v. McMurtry, 962 S.W.2d 473 (Tenn.
1998), and the joinder provisions under Rule 19 of the Tennessee Rules of Civil Procedure, also
found that McNabb and Harrison incorrectly “sought to place 100 percent of fault on Morrison in
the first action and 100 percent of fault on Highways in the second action without pleading
comparative fault in either action.”



       2
           Harrison’s suit was settled in February of 1999; McNabb’s suit was settled in December
of 1999.
       3
       The trial court later consolidated the McNabb and Harrison separate complaints against
Highways.

                                                 -2-
        The Court of Appeals reversed the trial court’s summary judgment after concluding that
Highways was not deprived of the opportunity to have fault apportioned against Morrison. The
Court of Appeals did not discuss Rule 19 of the Tennessee Rules of Civil Procedure and instead
reasoned that the “circumstances of this case are not unlike a plaintiff suing two defendants for
tortious injuries in the same action and settling with . . . one before trial, but going to trial as to the
remaining defendant.” Accordingly, the intermediate court held that the appellees’ settlements with
Morrison did not establish a basis to dismiss the complaints against the appellant Highways.

        We granted Highways’ application for permission to appeal to review these issues.

                                                Analysis

                                          Standard of Review

        Before examining the merits of the appeal, we first address whether the Court of Appeals
erred in reviewing de novo, without a presumption of correctness, the trial court’s dismissal of the
complaint.

        The appellant Highways argues that the Court of Appeals should have applied the “abuse of
discretion” standard of review which is applicable to a dismissal based on a plaintiff’s failure to join
an indispensable party. See Tenn. R. Civ. P. 12.02(7). The appellees, McNabb and Harrison,
contend that the Court of Appeals correctly applied the standard de novo without a presumption of
correctness, which is the standard of review applicable to a question of law presented by a motion
for summary judgment.

        An examination of the record reveals that Highways filed a motion for summary judgment
arguing that McNabb and Harrison were not permitted to file complaints against Highways alleging
a separate cause of action after having filed complaints against Ronald Morrison based on the same
accident. The trial court granted the motion for summary judgment on this basis and dismissed the
suits with prejudice. Although the trial court’s order referred to the failure to join all of the
defendants in the same action and cited Rule 19 of the Tennessee Rules of Civil Procedure, McNabb
and Harrison correctly assert that a dismissal for the failure to join an indispensable party necessarily
would have been without prejudice. Indeed, the Tennessee Rules of Civil Procedure state:

                        Unless the court in its order for dismissal otherwise specifies,
                a dismissal under this subdivision and any dismissal not provided for
                in this Rule 41, other than a dismissal for lack of jurisdiction or for
                improper venue or for lack of an indispensable party, operates as an
                adjudication upon the merits.




                                                   -3-
Tenn. R. Civ. P. 41.02(3) (emphasis added).4

       Accordingly, the record demonstrates that the trial court’s order of dismissal in this case
granted the motion for summary judgment filed by Highways and dismissed the complaints with
prejudice. Under these circumstances, the Court of Appeals correctly applied the standard of review
applicable to a question of law presented in a motion for summary judgment, i.e., de novo without
a presumption of correctness. See Bain v. Wells, 936 S.W.2d 618, 622 (Tenn. 1997).


                                        Dismissal of Complaint

        Turning to the merits of the appeal, Highways argues that where the separate, independent
negligent acts of more than one tortfeasor combine to cause a single, indivisible injury, a plaintiff
is limited to one cause of action and must join all of the tortfeasors in that action and that this
Court’s decision in Samuelson v. McMurtry, 962 S.W.2d 473 (Tenn. 1998), requires that result.
Moreover, Highways argues that joinder of Morrison was required as an indispensable party.
See Tenn. R. Civ. P. 19. McNabb and Harrison respond that Samuelson is not controlling since
Highways may raise comparative fault as an affirmative defense and ask the jury to allocate fault to
Morrison. They also contend that Ronald Morrison was not an indispensable party in this action.

        We begin our analysis with the landmark case of McIntyre v. Balentine, 833 S.W.2d 52
(Tenn. 1992), in which we adopted a system of modified comparative fault. Under this system, a
plaintiff may recover damages where the plaintiff’s fault is less than the defendant’s fault. The
plaintiff’s recovery of damages, however, is reduced to reflect his or her degree of fault. Id. at 57.
In cases of multiple tortfeasors, a “plaintiff will be entitled to recover so long as plaintiff’s fault is
less than the combined fault of all tortfeasors.” Id. at 58.

         In applying comparative fault principles to this case, Highways relies primarily upon
Samuelson v. McMurtry and asserts that a plaintiff must join all tortfeasors in the same proceeding
or else face dismissal of later complaints against other tortfeasors. In the unusual case of Samuelson,
the plaintiff’s estate filed a complaint against two physicians and a chiropractor alleging a negligent
failure to diagnose the decedent’s pneumonia. After the trial court dismissed the cause of action
against the chiropractor, the case went to trial and a jury apportioned fault between the two
physicians. The plaintiff elected not to appeal the jury’s verdict against the two physicians, but did
appeal the trial court’s dismissal of the complaint against the chiropractor. 962 S.W.2d at 474-75.
We held on appeal that the trial court erred in dismissing the claim against the chiropractor because
it allowed the plaintiff to proceed “in separate, consecutive actions [that] would defeat the efficiency
and fairness that are the objectives of the principles of comparative fault.” Id. at 476. We also said,
however, that



        4
        In addition, the joinder provisions of Rule 19 of the Tennessee Rules of Civil Procedure
were not applicable in this case for the reasons discussed later in this opinion.

                                                   -4-
                   [t]he trial court’s errors deprived the plaintiff of the right to proceed
                   against the [chiropractor] in the same trial with the other defendants
                   and also of the right to have the decedent’s fault compared with the
                   fault of all the defendants. The defendants other than [the
                   chiropractor] were deprived of an opportunity to have fault
                   apportioned against [the chiropractor]. This result could have been
                   accomplished on remand had the plaintiff appealed the entire case.

Id. at 476.

         The appellant’s interpretation of Samuelson is overly broad. It relies on Samuelson for the
proposition that we have adopted a “one-action” rule under which a plaintiff in all negligence cases
must pursue all tortfeasors in a single action or suffer the dismissal of later actions. Under the
unique facts in Samuelson, however, we concluded that the chiropractor could not be tried on
remand without impugning the jury’s verdict or denying the opportunity for the chiropractor’s degree
of fault to be properly compared against the two physicians under McIntyre. Samuelson, 962 S.W.2d
at 476. In contrast, there has been no adjudication or allocation of fault in this case, and Highways
has not been denied the opportunity to assert that the responsibility for the appellees’ injuries rests
elsewhere. In short, this case is fundamentally different from the rare facts in the Samuelson case.5


        Highways’ broad interpretation of Samuelson is also misplaced because it conflicts with well-
established procedural rules and statutes applied under McIntyre. We emphasized in McIntyre, for
example, that “fairness and efficiency require that defendants called upon to answer allegations [of]
negligence be permitted to allege, as an affirmative defense, that a nonparty caused or contributed
to the injury or damage for which recovery is sought.” 833 S.W.2d at 58 (emphasis added). The
Rules of Civil Procedure therefore require that a defendant shall raise comparative fault, “including
the identity or description of any other alleged tortfeasors,” in an answer as an affirmative defense
to the plaintiff’s cause of action. See Tenn. R. Civ. P. 8.03; see also George v. Alexander, 931
S.W.2d 517, 521 (Tenn. 1996) (Court discussed the defendant’s duty to plead comparative fault and
identify tortfeasors under Rule 8.03).




         5
           Highways’ effort to bo lster its interpretation of Samuelson with authority from other jurisdictions is likewise
unavailing. It has identified only two states that ha ve ad opted a procedure by which a plaintiff must file a single action
against all potential tortfeasors or else risk the dismissal of later actions, one of which we cited in Samuelson. See
Cogdell v. Hosp. Ctr. at Orange, 560 A.2d 116 9 (N .J. 1989); see also Albertson v. Volkswagenwerk Aktiengese llschaft,
634 P.2d 11 27 (Kan. 1981). Even in these jurisdictions, ho wever, the courts have clarified that a case would not be
dismissed against one de fendant where a separate ac tion against another defendant ends with a settlement agreement and
not an adjudicated allocation of fault. See Mitchell v. Charles P. Procini, D.D.S., 752 A.2d 349 , 355 -56 (N .J. Sup er. Ct.
App. Div. 2000) (settlement with one defendant did not preclude allocation of fault in an action against another
defendant); Mathis v. TG&Y, 751 P.2d 1 36 (Kan. 19 88) (settlement agreement with one defendant did not mandate the
dismissal of a separate suit against another defendant when there had been no judicial determinatio n of fault). In short,
the cases relied upon by Highways are fundamentally different than the facts of the present case.

                                                            -5-
        Similarly, we recognized in McIntyre that after a defendant raises comparative fault and
asserts that another tortfeasor is liable to the plaintiff, a plaintiff must make a timely amendment to
the complaint and serve process in order to seek a judgment against the newly named tortfeasor.
McIntyre, 833 S.W.2d at 57; see also Browder v. Morris, 975 S.W.2d 308, 310 (Tenn. 1998).

        The legislature has since enacted Tennessee Code Annotated, Section 20-1-119(a), which
affords a plaintiff an additional ninety (90) days in which to either amend the initial complaint or file
a new and separate complaint against the new tortfeasor when a defendant’s answer asserts
comparative fault and identifies a tortfeasor against whom the statute of limitations has run.6 As the
Court of Appeals has observed, the purpose and effect of this statutory provision “simply preserves
a plaintiff’s prerogative to select defendants just as they were able to before McIntyre v. Balentine
was decided.” Townes v. Sunbeam Oster Co., 50 S.W.3d 446, 453 (Tenn. Ct. App. 2001). In short,
the one-action rule advocated by Highways, under which a plaintiff bears the burden of identifying
and filing actions against all potential defendants in a single complaint or else suffer the dismissal
of any later amendments or complaints, would render the provisions of Rule 8 of the Tennessee
Rules of Civil Procedure and Tennessee Code Annotated, Section 20-1-119(a), all but meaningless.


        Similarly, Highways’ argument, and the trial court’s conclusion, that it is unfair to permit a
plaintiff to divide an action by seeking to recover complete damages from each of multiple
defendants is likewise inconsistent with McIntyre when applied to the facts of this case. The purpose
of comparative fault under McIntyre is to link one’s liability to his or her degree of fault in causing
a plaintiff’s damages. McIntyre, 833 S.W.2d at 57. Nothing in this case prevents Highways from
asserting comparative fault as an affirmative defense and nothing prevents Highways from arguing
that the jury should allocate all or a portion of the fault to McNabb, Harrison, and Ronald Morrison.
As the Court of Appeals in this case observed:


        6
                           (a) In civil actions where comp arative fault is or becomes an issue, if a
                 defendant named in an original complaint initiating a suit filed within the applicable
                 statute of limitations, or named in an amended complaint filed within the app licable
                 statute of limitations, alleges in an answer o r amended answer to the original or
                 amended complaint that a person no t a party to the suit caused or contributed to the
                 injury or damage for which the plaintiff seeks recovery, and if the plaintiff’s cause
                 or causes of action against such perso n wou ld be barre d by any app licable statute
                 of limitations but for the op eration of this sec tion, the p laintiff may, within ninety
                 (90) days of the filing of the first answer or first amended answer alleging such
                 person’s fault, either:

                           (1) Ame nd the com plaint to add such p erson as a de fendant pursuant to
                 Rule 15 of the Tennessee Rules of Civil Procedure and cause process to be issued
                 . . .; or

                          (2) Institute a separate action against that person by filing a summons and
                 com plaint. . . .

Tenn. Cod e Ann. § 20-1-119 (19 94 & S upp. 2002 ) (emphasis added).

                                                           -6-
               [T]he circumstances of this case are not unlike a plaintiff suing two
               defendants for tortious injuries in the same action and settling with
               the one before trial, but going to trial as to the remaining defendant.
               A plaintiff’s settling with one co-defendant under the comparative
               fault doctrine, does not establish a basis for dismissal as to the
               remaining defendant. In these cases, the defendant is not deprived of
               the opportunity to have fault apportioned against Morrison, as it has
               . . . raised in its answer the affirmative defense of Morrison’s
               negligence.

See Mitchell v. Charles P. Procini, D.D.S., 752 A.2d 349, 355 (N.J. Super. Ct. App. Div. 2000)
(concluding that a settlement with one defendant did not prevent allocation of fault in a separate
action against another defendant); Mathis v. TG&Y, 751 P.2d 136, 138 (Kan. 1988) (concluding that
a settlement with one defendant did not require dismissal of a separate suit because there had been
no judicial determination of fault). The proceedings, therefore, fully comport with the purpose of
linking liability with the degree of fault under McIntyre.

         Finally, the record does not support Highways’ argument that allowing the action to continue
is unfairly prejudicial because it places the burden upon it to establish Morrison’s fault and denies
it the opportunity to conduct a joint defense with Morrison. Highways has not demonstrated any
potential defense that has been lost or evidence that has been rendered unavailable in these
proceedings. Moreover, as the appellees’ assert, the alleged prejudice is at best conjectural since
Highways not only will be able to assert comparative fault as a defense but will also be able to argue
that all of the fault lies with Morrison uncontradicted by Morrison’s defense or presence as a litigant.
In short, Highways has demonstrated no prejudice that would justify the adoption of a rule that finds
no support either in Tennessee or other jurisdictions.

                                         Indispensable Party

         In its final argument, Highways contends that the trial court properly dismissed the complaint
because McNabb and Harrison failed to join all of the defendants in a single complaint as
indispensable parties. Tenn. R. Civ. P. 19.01. McNabb and Harrison deny that they failed to join
an indispensable party and assert that dismissal of the complaint is not the proper remedy for a
failure to join an indispensable party under Rule 19.01 of the Tennessee Rules of Civil Procedure.

        The Rule provides that a person shall be joined as a party in two situations: (1) when, in the
person’s absence, complete relief cannot be afforded among those who are already parties; and (2)
when the person claims an interest related to the subject of the action and disposition of the action
in the person’s absence may impair or impede the person’s ability to protect the interest or leave
those who are already parties subject to a “substantial risk of incurring double, multiple, or otherwise
inconsistent obligations by reasons of the claimed interest.” Tenn. R. Civ. P. 19.01. “A pleading
asserting a claim for relief shall state the names, if known to the pleader, of any persons as described



                                                  -7-
in Rule 19.01(1)-(2) hereof who are not joined, and the reasons why they are not joined.” Tenn. R.
Civ. P. 19.03.

         Highways’ argument that the complaint was properly dismissed on this basis is unconvincing
because it conflicts with the record and the provisions of the applicable rules. For example, the
record does not support Highways’ assertion that Morrison was an indispensable party under the
criteria contained in Rule 19.01. As we have explained, Morrison’s settlement with McNabb and
Harrison did not prevent Highways from raising comparative fault as an affirmative defense and did
not prevent Highways from arguing that all or some of the fault should be allocated to Morrison.
Morrison’s absence as a party, therefore, would not result in a failure to afford complete relief
between the parties. See Tenn. R. Civ. P. 19.01.

        Similarly, the record fails to disclose either that Morrison had an interest in the complaint
against Highways, or that Morrison’s absence would subject Highways to double, multiple, or
inconsistent obligations. See id. Morrison’s settlement with McNabb and Harrison had no impact
on the defenses available to or the possible obligations incurred by Highways.7

        Finally, as the appellees McNabb and Harrison note, when a party fails to comply with the
required procedures on joining an indispensable party, the appropriate remedy is not dismissal of the
action. Tenn. R. Civ. P. 21 (“Misjoinder of parties is not ground for dismissal of an action.”).
Indeed, Highways’ invitation for this Court to adopt a rule requiring or allowing dismissal for the
failure to join an indispensable party conflicts with the express language of the applicable rules.
Moreover, Highways’ argument is inherently flawed given our conclusion that the trial court’s order
effectively dismissed the complaints on summary judgment grounds with prejudice and did not
dismiss the complaints based on the failure to join an indispensable party. We therefore conclude
that the appellees McNabb and Harrison were not required to join all of the defendants in a single
complaint as indispensable parties.

                                                         Conclusion

         Accordingly, after reviewing the record and the applicable authority, we hold that the trial
court erred in granting summary judgment to the defendant based on the plaintiff’s failure to join the
tortfeasors in a single proceeding and that Samuelson v. McMurtry, 962 S.W.2d 473 (Tenn. 1998),
is not applicable to the facts of this case. We affirm the Court of Appeals’ judgment and remand to
the trial court for further proceedings. Costs of the appeal are taxed to the appellant, Highways, Inc.,
for which execution shall issue if necessary.

                                                                       ___________________________________
                                                                       E. RILEY ANDERSON, JUSTICE


          7
           See also June F. Entman, The NonParty Tortfeasor, 23 M EM . S T . U.L. R EV . 105, 114-15 (19 92) (“Application
of Rule 19's criteria . . . yields the result that other potential tortfeasors are not p erson s whose joinder is required in a suit
to recover against a defendant who the plaintiff claims negligently caused him injury.”)

                                                                -8-
