                    IN THE COURT OF APPEALS OF TENNESSEE
                                AT KNOXVILLE
                             October 15, 2001 Session

 ANTHONY McNABB and Wife SHERRY McNABB v. HIGHWAYS, INC.,
and A&H SAFETY SUPPLY, PAUL HARRISON v. HIGHWAYS, INC., and
                   A&H SAFETY SUPPLY

                    Direct Appeal from the Circuit Court for Polk County
                 Nos. 3596 and 3597   Hon. Lawrence Puckett, Circuit Judge

                                        FILED NOVEMBER 20, 2001

                                  No. E2001-00867-COA-R3-CV



Plaintiffs’ action for damages for personal injury allegedly due to defendant’s negligence, was
dismissed by the Trial Judge for failure of plaintiffs to join all alleged tort feasors in one action. On
appeal, we vacate and remand.


Tenn. R. App. P.3 Appeal as of Right; Judgment of the Circuit Court Vacated.


HERSCHEL PICKENS FRANKS, J., delivered the opinion of the court, in which HOUSTON M. GODDARD,
P.J., and CHARLES D. SUSANO, JR., J., joined.

Andrew R. Tillman, Knoxville, Tennessee, for Appellants.

Donald W. Strickland, Chattanooga, Tennessee, for Appellee, Highways, Inc.



                                              OPINION



               In this action for damages for personal injuries allegedly caused by Defendant’s
negligence, the Trial Court granted defendant summary judgment, and plaintiffs have appealed.

               On May 8, 1998, plaintiffs sustained serious personal injuries when their motor
vehicle was struck by a vehicle operated by Ronald Morrison, which had struck a concrete barrier
in a construction zone and crossed the center line, striking plaintiffs’ vehicle.

                 Plaintiffs in the Circuit Court of Polk County, brought actions against Morrison for
their injuries on August 21, 1998, and subsequently brought this action against defendant on January
20, 1999. As an affirmative defense in defendant’s Answer which was filed on January 26, 1999,
it pled that it was not at fault, and that “the accident in plaintiffs’ injuries resulted from the
negligence of Ronald Morrison”. Plaintiffs then settled with defendant Morrison, and the actions
against Morrison were dismissed on February 6, 1999, with the Order reciting that the issues
between the parties had been settled.

              In granting the defendant summary judgment, the Trial Court, in his Memorandum
Opinion, expressed:

                 by filing suit initially against the driver of the other vehicle, Ronald E. Morrison, and
                 subsequently filing these actions against the defendants, Highways, Inc., and A&H
                 Safety Supply,1 who are allegedly responsible for conditions of the highway, plaintiff
                 failed to follow the procedure outlined by the Tennessee Supreme Court in
                 Samuelson.

              Our review of the summary judgment is a question of law and the scope of review
is de novo with no presumption of correctness of the Trial Court’s finding. Bain v. Wells, 936
S.W.2d 618, 622 (Tenn. 1997); Ridings v. Ralph M. Parsons Co., 914 S.W.2d 79, 80 (Tenn. 1996).
We conclude the facts of this case which are undisputed are not controlled by Samuelson.
[Samuelson v. McMurtry, 962 S.W.2d 473 (Tenn. 1998].2

                  In Samuelson, plaintiff had sued multiple defendants, and the Trial Court separated
one defendant, Totty, and went forward with a jury trial as to the remaining defendants. Only one
of the remaining defendants was cast in judgment for damages, and no appeal was taken from that
trial. On appeal of Totty, who had been severed, the Supreme Court stated that while the Trial Court
was in error in severing defendant Totty for purposes of Trial, it was inappropriate to grant a new
trial as to Totty because “the plaintiff’s failure to appeal the judgments against defendants other than
Dr. Totty, was fatal to his right to a new trial”, and in explaining its reason the Court said:

                 The Trial Court’s errors deprived the plaintiff of the right to proceed against the
                 defendant, Totty, in the same trial with the other defendants, and also of the right to


       1
           A&H Safety Supply is no longer a party to this action.
       2
        The Court in Samuelson relied on Cogdell v. Hospital Center at Orange, 116 N.J. 7, 560
A.2d 1169 (1989), and followed the so-called “Entire Controversy doctrine” announced by the New
Jersey Supreme Court, that Court has further limited the doctrine. See Olds v. Donnelly v. Maran,
150 N.J. 424, 696 A.2d 633 (1997).

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               have the defendant’s fault compared with the fault of all defendants. The defendants
               other than Totty were deprived of an opportunity to have the fault apportioned
               against Dr. Totty. This result could have been accomplished on remand, had plaintiff
               appealed the entire case. (Emphasis supplied).

The Supreme further observed that the procedure required under Tennessee’s Comparative Fault
formulation “retains the efficiency of joint liability and the fairness of comparative fault”.

                 As to the issue of conserving judicial efficiency, the cases against this defendant and
Morrison were all filed in the Circuit Court of Polk County, and had they all gone to trial, they
should have been combined for purposes of trial. As to the issue of fairness, the 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 already raised in its answer the
affirmative defense of Morrison’s negligence. Accordingly, defendant has not been prejudiced by
the plaintiffs’ settling their action against Morrison.

               We vacate the Judgment of the Trial Court and remand for further proceedings
consistent with this Opinion. The costs of the appeal are taxed to the defendant, Highways, Inc.




                                                        _________________________
                                                        HERSCHEL PICKENS FRANKS, J.




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