                IN THE COURT OF APPEALS OF TENNESSEE
                             AT JACKSON
                             NOVEMBER 16, 2010 Session

             CALVIN GRAY MILLS, JR., and wife, LINDA MILLS
                        v. FULMARQUE, INC.

               Direct Appeal from the Circuit Court for Shelby County
                    No. CT-005990-05     James F. Russell, Judge


              No. W2010-00933-COA-R3-CV - Filed December 23, 2010


Plaintiffs initially filed suit against Royal Group, among others. In its answer, Royal Group
alleged the comparative fault of Aaron Rents, Inc. Because the one-year statute of
limitations had run, Plaintiffs utilized Tennessee Code Annotated section 20-1-119’s ninety-
day window to amend their complaint to add Aaron Rents as a defendant. However, in its
answer, Aaron Rents then identified Fulmarque, Inc. as a comparative tortfeasor. Plaintiffs
again amended their complaint to add Fulmarque as a defendant, but summary judgment was
granted to Fulmarque based upon the running of the statute of limitations.

On appeal, the parties disagree as to whether Tennessee Code Annotated section 20-1-119
authorizes successive ninety-day windows in which additional defendants may be named.
We are asked to interpret whether the term “applicable statute of limitations” as used in the
statute, and appearing in the phrase “or named in an amended complaint filed within the
applicable statute of limitations,” refers only to the one-year limitation period for personal
injury or to the limitation period as extended by the ninety-day window. We find that the
term does not simply refer to the one year limitation period for personal injury, but also to
the limitation period as extended by the ninety-day window. Therefore, because Aaron Rents
was “named in an a amended complaint filed within the applicable statute of limitations[,]”
and because Plaintiffs amended their complaint to name Fulmarque within ninety days from
Aaron Rents’ identification of Fulmarque in its answer, we find that the trial court erred in
granting summary judgment to Fulmarque.


Tenn. R. App. P. 3; Appeal as of Right; Judgment of the Circuit Court Reversed and
                                    Remanded

A LAN E. H IGHERS, P.J., W.S., delivered the opinion of the Court, in which H OLLY M. K IRBY,
J., and J. S TEVEN S TAFFORD, J., joined.
J. Houston Gordon, Covington, Tennessee; Irma Merrill Stratton, Memphis, TN, for the
appellants, Calvin Gray Mills, Jr. and wife, Linda Mills

Andrew H. Owens, Memphis, Tennessee, for the appellee, Fulmarque, Inc.

                                              OPINION

                              I.   F ACTS & P ROCEDURAL H ISTORY

        Calvin Gray Mills, Jr. and his wife, Linda Mills, (“Plaintiffs”) filed suit against N &
M Investment, L.P. and The Royal Group, Inc. d/b/a The Allen Stone Box Company (“Royal
Group”) on December 20, 2002 in the Federal District Court for the Western District of
Tennessee in Memphis, alleging personal injuries arising from an April 24, 2002 accident.
In its amended answer, filed January 2, 2004, Royal Group first alleged the comparative fault
of Aaron Rents, Inc. Because the one-year statute of limitations for personal injury actions 1
had run, Plaintiffs utilized Tennessee Code Annotated section 20-1-119’s ninety-day window
to amend their complaint on January 26, 2004, to name Aaron Rents as a defendant.

        In its April 4, 2004 Answer, Aaron Rents first alleged the comparative fault of
Fulmarque, Inc. Plaintiffs then filed a Second Amended Complaint on April 30, 2004
naming Fulmarque as a defendant.2 Fulmarque moved for summary judgment arguing that
because Aaron Rents was not sued within one-year from the date of injury, its naming of
Fulmarque in its answer did not trigger a ninety-day window within which Plaintiffs could
add Fulmarque as a defendant, and thus, that Plaintiffs’ claim against Fulmarque was time-
barred. The trial court agreed and granted Fulmarque’s motion for summary judgment.3
Plaintiffs appeal.




        1
         Tenn. Code Ann. § 28-3-104 provides that actions for “injuries to the person” “shall be commenced
within one (1) year after the cause of action accrued.”
        2
          Because the addition of Fulmarque destroyed diversity jurisdiction, the federal litigation was
dismissed on December 9, 2004, and the case refiled in the Shelby County Circuit Court. Additionally, we
note that a “Plaintiff’s right to amend a complaint to add a defendant in a comparative fault action under
section 20-1-119 requires written consent of the adverse parties or leave of court.” Jones v. Prof’l
Motorcycle Escort Serv., L.L.C., 193 S.W.3d 564, 569 (Tenn. 2006). Compliance with this requirement is
not at issue on appeal.
        3
        The trial court denied Plaintiffs’ initial motion for summary judgment, and this Court denied
Fulmarque’s application for interlocutory appeal. However, the trial court granted Fulmarque’s renewed
motion for summary judgment.

                                                   -2-
                                       II.     I SSUE P RESENTED

        On appeal, we are asked to interpret whether the term “applicable statute of
limitations” as used in Tennessee Code Annotated section 20-1-119, and appearing in the
phrase “or named in an amended complaint filed within the applicable statute of limitations,”
refers only to the one-year limitation period for personal injury or to the limitation period as
extended by the ninety-day window. The question presented is one of first impression in this
State.4

                                             III.   D ISCUSSION


       Tennessee adopted a system of modified comparative fault in McIntyre v. Balentine,
833 S.W.2d 52 (Tenn. 1992), which allows a plaintiff to recover as long as his fault is less
than that of the defendant. Browder v. Morris, 975 S.W.2d 308, 310 (Tenn. 1998). Of
course, the plaintiff’s damages are reduced according to his own fault. Id. (citing McIntyre,
833 S.W.2d at 57). Regarding attributing fault to nonparties, the McIntyre court stated:

        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. In cases where such a defense is raised, the trial court shall
        instruct the jury to assign this nonparty the percentage of the total negligence
        for which he is responsible. However, in order for a plaintiff to recover a
        judgment against such additional person, the plaintiff must have made a timely
        amendment to his complaint and caused process to be served on such
        additional person.

Id. (quoting McIntyre, 833 S.W.2d at 58). The Court “anticipated a statute of limitations
predicament for some plaintiffs because a defendant could plead the fault of a nonparty after
the statute of limitations had run against that nonparty, thus preventing the plaintiff from
adding the nonparty to the suit.” Id. To address this concern, the legislature enacted
Tennessee Code Annotated section 20-1-119, which provides in relevant part:

        (a) In civil actions where comparative fault is or becomes an issue, if a
        defendant named in an original complaint initiating a suit filed within the


        4
         This issue was previously certified to our Supreme Court from the United States District Court for
the Eastern District of Tennessee; however, the question was rendered moot and, therefore, not addressed.
See Curtis v. G.E. Capital Modular Space, 155 S.W.3d 877, 879 (Tenn. 2005).

                                                     -3-
      applicable statute of limitations, or named in an amended complaint filed
      within the applicable statute of limitations, alleges in an answer or amended
      answer to the original or amended complaint that a person not 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 that person
      would be barred by any applicable statute of limitations but for the operation
      of this section, the plaintiff may, within ninety (90) days of the filing of the
      first answer or first amended answer alleging that person’s fault, either:

      (1) Amend the complaint to add the person as a defendant pursuant to Tenn.
      R. Civ. P. 15 and cause process to be issued for that person; or

      (2) Institute a separate action against that person by filing a summons and
      complaint. If the plaintiff elects to proceed under this section by filing a
      separate action, the complaint so filed shall not be considered an original
      complaint initiating the suit or an amended complaint for purposes of this
      subsection (a).

      (b) A cause of action brought within ninety (90) days pursuant to subsection
      (a) shall not be barred by any statute of limitations. This section shall not
      extend any applicable statute of repose, nor shall this section permit the
      plaintiff to maintain an action against a person when such an action is barred
      by an applicable statute of repose.

      (c) This section shall neither shorten nor lengthen the applicable statute of
      limitations for any cause of action, other than as provided in subsection (a).

      ....

      (e) This section shall not limit the right of any defendant to allege in an answer
      or amended answer that a person not a party to the suit caused or contributed
      to the injury for which the plaintiff seeks recovery.

      (f) As used in this section, “Person” means any individual or legal entity.

Tenn. Code Ann. § 20-1-119. It is this statute which the parties now ask us to construe.
Specifically, we are asked to construe subsection (a)’s a ninety-day window for adding a
comparative tortfeasor who is “named in an amended complaint filed within the applicable
statute of limitations.”



                                             -4-
        The construction of a statute is a question of law which we review de novo without
a presumption of correctness. Browder, 975 S.W.2d at 311 (citing Myint v. Allstate Ins. Co.,
970 S.W.2d 920 (Tenn. 1998)). When construing a statute, our role is to effectuate the intent
of the legislature, Ward v. AMI SUB (SFH), Inc., 149 S.W.3d 35, 39 (Tenn. Ct. App. 2004)
(citing Frazier v. East Tenn. Baptist Hosp., Inc., 55 S.W.3d 925, 928 (Tenn. 2001)), which
is determined “‘from the natural and ordinary meaning of the statutory language within the
context of the entire statute without any forced or subtle construction that would extend or
limit the statute’s meaning.’” Browder, 975 S.W.2d at 311 (quoting State v. Flemming, 19
S.W.3d 195, 197 (Tenn. 2000)). We must “assume that the legislature used each word in
the statute purposely, and that the use of these words conveys some intent and has a meaning
and purpose.” Id. (citing Locust v. State, 912 S.W.2d 716, 718 (Tenn. Ct. App. 1995)).
“Where the words of the statute are clear and plain and fully express the legislature’s intent,
there is no room to resort to auxiliary rules of construction,” Id. (citing Roberson v. Univ. of
Tenn., 912 S.W.2d 746, 747 (Tenn. Ct. App. 1995), and we must simply enforce the statute
as written. Id. (citing In re Conservatorship of Clayton, 914 S.W.2d 84, 90 (Tenn. Ct. App.
1995)). However, when the statutory language is ambiguous “‘and the parties legitimately
derive different interpretations, we must look to the entire statutory scheme to ascertain the
legislative intent.’” Humphrey v. State, No. E2003-00617-COA-R3-CV, 2003 WL
22046152, at *2 (Tenn. Ct. App. Aug. 28, 2003) perm. app. denied (Tenn. Oct. 4, 2004)
(quoting Jordan v. Baptist Three Rivers Hosp., 984 S.W.2d 593, 599 (Tenn. 1999)). “‘Where
the language of the statute does not speak to the precise issue, courts should ‘give
consideration to the purpose, objective and spirit behind the legislation.’” McClendon v.
Bunick, No. E1999-02814-COA-R3-CV, 2001 WL 536614, at *4 (Tenn. Ct. App. May 21,
2001) (quoting Lipscomb v. Doe, 32 S.W.3d 840, 845 (Tenn. 2000)).

        On appeal, the parties essentially dispute whether Tennessee Code Annotated section
20-1-119 allows successive ninety-day windows. Subsection (b) states that “[a] cause of
action brought within ninety (90) days pursuant to subsection (a) shall not be barred by any
statute of limitations[,]” Tenn. Code Ann. § 20-1-119(b) (emphasis added), but the statute
fails to specify whether such actions are to be considered brought “within the applicable
statute of limitations[.]” Plaintiffs contend that successive ninety-day windows are allowed:
because Aaron Rents was properly added as a defendant within ninety days of being
identified by original defendant Royal Group, Aaron Rents was sued “within the applicable
statute of limitations.” Thus, Plaintiffs contend, they are afforded a second ninety-day
window from the time of Aaron Rents’ answer to name additional defendants identified in
such.

        However, Fulmarque argues that successive ninety-day periods are not allowed under
the statute. According to Fulmarque, Aaron Rents was not “named in an amended complaint
filed within the applicable statute of limitations” but rather in an amended complaint filed

                                              -5-
within a ninety-day window. Thus, Fulmarque argues that the filing of Aaron Rents’ answer
did not trigger an additional ninety-day window in which Plaintiffs could amend their
complaint.

        As required, we first look to the plain language of the statute to determine whether
Tennessee Code Annotated section 20-1-119 extends “the applicable statute of limitations,”
that is, whether an amended complaint filed beyond the original statute of limitations yet
within ninety days from the identification of a comparative tortfeasor in an answer or an
amended answer, is “filed within the applicable statute of limitations[.]” Fulmarque contends
that the statute clearly requires a defendant to have been sued within the original statute of
limitations for a cause of action – in this case, within one year – in order for that
defendant’s answer naming a comparative tortfeasor to trigger a ninety-day window. We
disagree with Fulmarque’s contention that the statute is so “clear.”

         When a comparative tortfeasor is identified in an answer or an amended answer
outside of the original statute of limitations for the underlying action, a plaintiff may, within
ninety days, elect either to institute a separate action against that person or to amend his
complaint to add that person. Tenn. Code Ann. § 29-1-119(a). Subsection (a)(2) expressly
states that if a plaintiff elects to institute a separate action, the complaint filed “shall not be
considered an original complaint initiating the suit or an amended complaint for purposes of
this subsection (a).” Tenn. Code Ann. § 29-1-119(a)(2). Thus, if a plaintiff elects to file
a separate action against such tortfeasor, no second ninety-day window is triggered to allow
suit against additional comparative tortfeasors identified in his answer. However, the statute
does not mention any such limitation where the plaintiff elects to amend his complaint rather
than file a separate action. Fulmarque suggests that interpreting the statute to allow
successive ninety-day windows when a complaint is amended, but not when a separate action
is instituted, would “create a conflicting dichotomy” that the legislature did not intend. We
acknowledge that the statute identifies no rationale for differential treatment based on the
plaintiff’s election; however, the express preclusion of successive ninety-day windows when
a separate action is filed suggests that the legislature, had it wished to do so, could have
included such language regarding amended complaints. See State v. Edmondson, 231
S.W.3d 925, 927 (Tenn. 2007) (“‘[W]here the legislature includes particular language in one
section of the statute but omits it in another section of the same act, it is presumed that the
legislature acted purposefully in including or excluding that particular subject.’”) (quoting
Bryant v. Genco Stamping & Mfg. Co., 33 S.W.3d 761, 765 (Tenn. 2000)).

        Fulmarque suggests that we should construe “applicable statute of limitations” to
include only the statute of limitations for the underlying action. Considering an amended
complaint filed within a ninety-day window as having been “filed within the applicable
statute of limitations,” Fulmarque argues, would render the term “applicable” superfluous,

                                                -6-
as a defendant could always be brought in through a ninety-day window. We are mindful
that the “‘rules of statutory construction declare that a legislature is presumed to have used
no superfluous words.’” In re Hogue, 286 S.W.3d 890, 896 (Tenn. 2009) (quoting Platt v.
Union Pac. R.R., 99 U.S. 48 (1878)). However, we do not believe that including a ninety-day
window within “applicable statute of limitations” renders “applicable” useless. Instead, the
use of the term supports a conclusion that two statutes of limitation are in operation: the
original defendant must be named within the statute of limitations for the underlying action
– the “statute of limitations” “applicable” to him – while a comparative tortfeasor must be
named within ninety days from the answer alleging his fault, the “statute of limitations”
“applicable” to him.

        Subsection (e) states that “[t]his section shall not limit the right of any defendant to
allege in an answer or amended answer that a person not a party to the suit caused or
contributed to the injury for which the plaintiff seeks recovery.” Tenn. Code Ann. §20-1-
119. Fulmarque argues that this section supports its theory that successive ninety-day
windows are not allowed, as subsection (e) acknowledges that “there will be allegations
against entities that cannot be brought in the litigation.” However, subsection (c) provides
strong evidence that the legislature intended to allow successive ninety-day windows. Again,
subsection (c) states that “This section shall neither shorten nor lengthen the applicable
statute of limitations for any cause of action, other than as provided in subsection (a).”
Tenn. Code Ann. § 20-1-119(c) (emphasis added). Subsection (c)’s plain language suggests
that the ninety-day window “lengthen[s]” the “applicable statute of limitations[,]” such that
an amended complaint filed within a ninety-day window should be considered filed “within
the applicable statute of limitations.”

      We disagree that the plain language of the statute clearly prohibits successive ninety-
day windows in which comparative tortfeasors may be named. Instead, we find language
suggesting that successive periods are allowed, and, at a minimum, we find the statute
ambiguous. As we stated above, where statutory language is ambiguous, we must “‘give[]
consideration to the purpose, objective and spirit behind the legislation.’” McClendon, 2001
WL 536614, at *4 (quoting Lipscomb, 32 S.W.3d at 845).

        Our Supreme Court has stated that “Tenn. Code Ann. § 20-1-119 was enacted in
response to [the] adoption of comparative fault, and that the concepts of fairness and
efficiency form the basis of such a system.” Browder, 975 S.W.2d at 312 (citing Owens v.
Truckstops of Am., 915 S.W.2d 420, 424 (Tenn. 1996)). In Browder, the Court, holding that
the statute contemplates naming vicariously liable nonparties as defendants, went on to state:

       It is neither fair nor efficient in a comparative fault scheme to permit a
       defendant to identify a financially or legally responsible non-party after the

                                              -7-
       statute of limitations has run against that nonparty, yet deny the plaintiff an
       opportunity to join them as a defendant. Even though the financially
       responsible nonparty may not itself be negligent, it is still legally responsible
       for the plaintiff’s damages. To require as a matter of law that such nonparties
       be left out of the suit after being identified by a defendant is not consistent
       with notions of fairness and efficiency, as the plaintiff will be forced to bear
       the loss for any liability that it fails or is unable to assert and any judgment that
       cannot be enforced.

975 S.W.2d at 312 (footnote omitted). Furthermore, the Court has described the statute as
providing “‘an injured party with a fair opportunity to bring before the court all persons who
caused or contributed to the party’s injuries[,]’” Austin v. State, 222 S.W.3d 354, 357 (Tenn.
2007) (quoting Townes v. Sunbeam Oster Co., 50 S.W.3d 446, 451 (Tenn. Ct. App. 2001)),
and acknowledged that “[i]n light of this purpose, we have rejected arguments that narrowly
construe Tennessee Code Annotated section 20-1-119[.]” Id. (holding that the opportunity
to recover from a defendant should not be foreclosed simply because the plaintiff’s complaint
failed to explicitly allege comparative fault) (citing Browder, 975 S.W.2d at 312).
Moreover, the Middle Section of this Court has cautioned against interpreting the statute “too
narrowly[,]” emphasizing that the statute is “remedial and should be construed liberally.”
Townes, 50 S.W.3d at 451 (holding that plaintiffs’ knowledge of defendant’s potential
liability at the time the original complaint was filed did not prohibit plaintiffs from amending
their complaint to add defendant pursuant to the statute).

        Bearing these principles in mind, we find that the term “applicable statute of
limitations” as used in Tennessee Code Annotated section 20-1-119, and appearing in the
phrase “or named in an amended complaint filed within the applicable statute of limitation,”
does not refer simply to the one-year limitation period for personal injury, but also to the
limitation period as extended by the ninety-day window. As such, because Aaron Rents was
“named in an amended complaint filed within the applicable statute of limitations[,]” and
because Plaintiffs amended their complaint to name Fulmarque within ninety days from
Aaron Rents’ identification of Fulmarque in its answer, we find that the trial court erred in
granting summary judgment to Fulmarque based upon a running of the statute of limitations.
The trial court’s grant of summary judgment is reversed, and this cause remanded for further
proceedings.




                                                -8-
                                   IV.    C ONCLUSION

      For the aforementioned reasons, we reverse the circuit court’s grant of summary
judgment, and we remand for further proceedings. Costs of this appeal are taxed to Appellee,
Fulmarque, Inc., for which execution may issue if necessary.

                                                  _________________________________
                                                  ALAN E. HIGHERS, P.J., W.S.




                                            -9-
