Case Background
On the evening of December 24, 2009, Richard Moreno was driving his car across the Neal Tarpley Bridge in Clarksville when a massive tree suddenly slammed on top of his car, seriously injuring him. The tree had been planted on property owned by the State of Tennessee. As a result, in accordance with the Tennessee Claims Commission Act,[1] Mr. Moreno filed a claim with the Claims Administration describing his injuries and providing an accounting of his medical expenses.
After filing his claim, Mr. Moreno received an order from the Claims Commissioner directing him to file a formal complaint against the State of Tennessee. Mr. Moreno promptly complied by filing a complaint alleging that the State had negligently maintained both the bridge and the tree that fell on him. Thereafter, the State filed an answer to Mr. Moreno’s complaint denying liability.
Notably, the State’s initial answer to Mr. Moreno’s complaint never mentioned that someone else might be responsible for the accident. However, sixteen months later, the State amended its answer and alleged for the first time that the City of Clarksville was responsible for Mr. Moreno’s injuries because water run-off from a city storm drain had eroded the soil around the bridge, rendering the tree that fell on him unstable.
Having learned for the first time that the City of Clarksville might bear some responsibility for his injuries, Mr. Moreno promptly filed a complaint against the City of Clarksville as well. Crucially, under Tennessee law, a plaintiff is allowed a ninety-day “grace period” to add a new party to a lawsuit if the defendant who was named in the “original complaint initiating a suit” contends that somebody else is liable.[2] The purpose of this allowance is “to provide an injured party with a fair opportunity to bring before the court all persons who caused or contributed to the party’s injuries.”[3] With this statute in mind, Mr. Moreno’s lawsuit against the City of Clarksville was filed within the ninety-day grace period.
By this time, more than three years had passed since the accident occurred. As a result, upon receiving Mr. Moreno’s complaint, the City filed a motion to dismiss his claim on the basis that it had not been filed within the one-year statute of limitations that applied under Tennessee’s Government Tort Liability Act.
Mr. Moreno opposed the City’s motion to dismiss on two obvious (and seemingly compelling) grounds. First, as noted above, Tennessee’s comparative fault statute expressly affords plaintiffs an additional ninety days to add a new party to a lawsuit if a defendant who was sued in the original complaint claims that somebody else was responsible.[4] Second, a separate statute also provides that filing a claim with the Claims Administration “tolls [meaning: “ pauses”] all statutes of limitations as to other persons potentially liable” for the incident at issue.[5] Thus, Mr. Moreno had two separate, strong arguments that the statute of limitations against the City had not expired, and that his lawsuit could move forward.
The trial court granted the City of Clarksville’s motion to dismiss, holding that the statute of limitations actually had expired. Mr. Moreno then appealed the trial court’s ruling to the Court of Appeals, which unanimously reversed it. The City of Clarksville then appealed to the Tennessee Supreme Court, giving rise to the present case.
Tennessee Supreme Court
Although procedurally complex, Mr. Moreno’s case before the Tennessee Supreme Court ultimately boiled down to two questions:
First, was the original claim that he had filed with the Claims Administration to initiate his lawsuit an “original complaint initiating a suit” within the meaning of Tennessee’s comparative fault statute?
Second, was the City of Clarksville a “person[] potentially liable” for his injury under the Claims Commission’s tolling provision?
If the answer to either of these questions was “yes,” then his claim against the City would be permitted to go forward.
With respect to the first question, the Tennessee Supreme Court held that the original claim that Mr. Moreno filed in the Claims Administration to initiate his lawsuit did not qualify as an “original complaint initiating a suit.” According to Justice Kirby’s opinion, the initial, informal claim that must be filed with the Claims Administration to initiate a lawsuit is meaningfully different from the formal complaint that is required thereafter—and that only the latter qualifies as the “original complaint.” She reasoned:
“the written notice and the [subsequent] complaint serve different functions. . . . The State is neither expected nor required to file an answer to the notice of the claim, and the claimant is not entitled to discovery during the protected settlement period.”
Therefore, the majority held that Mr. Moreno’s original claim initiating his lawsuit did not qualify as an “original complaint initiating a lawsuit.” According to the majority, that conclusion also resulted in a statutory reading “that [wa]s natural and unforced.” Mr. Moreno’s argument on this ground was rejected accordingly.
The court then turned to the second question presented: whether the tolling provision in Tenn. Code Ann. § 9-8-402(b) served to toll the statute of limitations against the City. In pertinent part, this provision states that: “The filing of [a] notice by the claimant [with the Claims Administration] tolls all statutes of limitations as to other persons potentially liable to the claimant due to the occurrence from which the claim before the commission arises.” Thus, the only remaining question was whether the City of Clarksville qualified as a “person[] potentially liable” for Mr. Moreno’s injuries for purposes of the Claims Commission’s tolling provision.
Unfortunately for Mr. Moreno, the majority opinion flatly rejected his argument in this regard as well. The reason they did so, however, is not obvious. It also would not become obvious even after parsing the applicable statutes, because in this context, there is no doubt that “‘person’ means any individual or legal entity.”[6]
Instead, the majority held that the tolling provision did not apply to the City of Clarksville because under its prior precedent interpreting the Governmental Tort Liability Act (GTLA),
“if a statute of general application is inconsistent with the GTLA statute of limitations, the general statute may be applied to extend the GTLA statute of limitations only if legislative intent to do so is expressly stated in the text of the inconsistent statute.”
Therefore, the majority concluded, because the Claims Commission’s tolling provision only applies “generally” and does not “expressly state” that it applies to the Governmental Tort Liability Act, Mr. Moreno was out of luck.
If the majority’s ruling in Mr. Moreno’s case seems technical and unreasonably formalistic, Justice Wade agreed. As he put it: “the majority’s [holding] is contrary to the plain meaning of the statute, elevates form over substance, and violates the principle that claims should be decided on the merits whenever possible.” He describes the majority’s opinion as “patently hyper-technical,” and he insists that “[t]here is nothing ‘forced’ or ‘unnatural’ about concluding that the notice of claim, which commences the action and sets out the basis for the plaintiff’s claim, qualifies as the ‘original complaint initiating a suit.’” Comparing the clarity of Justice Wade’s pithy dissent with the majority’s 23-page bear, it’s hard to disagree.
So what accounts for the profound chasm between Justice Wade, on the one hand, and Justices Kirby, Bivins, Clark, and Lee on the other? The consistently conservative bent of three of the latter Justices plays a role, to be sure, but the outcome of this case fits neatly within another pattern, too. When it comes to assessing liability for government entities specifically, Justice Wade – a former member of the Tennessee Trial Lawyers Association – has often played the role of the lone dissenter, as for example, in King v. Anderson Cnty., a prison liability case decided in 2013. In contrast, earlier in their careers, Justices Bivins, Clark and Lee all represented government entities, with Justice Bivins serving as General Counsel for the Tennessee Department of Personnel, Justice Clark serving as Franklin City Attorney, and Justice Lee serving as County Attorney for Monroe County. Thus, in much the way that Justice Kirby – an employment defense attorney in her former life – is comparatively more predisposed than her colleagues to rule in favor of civil defendants in employment matters,[7] it stands to reason that Justices Bivins’, Clark’s, and Lee’s past experiences as attorneys for government defendants inform their judgments as well.
Read Justice Kirby’s majority opinion in Moreno v. City of Clarksville here, and read Chief Justice Wade’s dissenting opinion here.
Questions about this article? Email Daniel Horwitz at [email protected].
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[1] Tenn. Code Ann. § 9-8-301, et seq.
[2] See Tenn. Code Ann. 20-1-119.
[3] Mann v. Alpha Tau Omega Fraternity, 380 S.W.3d 42, 50 (Tenn. 2012) (quoting Townes v. Sunbeam Oster Co., 50 S.W.3d 446, 451 (Tenn. Ct. App. 2001)).
[4] Id.
[5] See Tenn. Code Ann. § 9-8-402(b). “Tolling,” in legal parlance, means that a statute of limitations is put on hold.
[6] See Tenn. Code Ann. § 20-1-119(f) (“As used in this section, ‘person’ means any individual or legal entity.”) and (g) (“[T]his section applies to suits involving governmental entities.”).
[7] Compare Ferguson v. Middle Tennessee State Univ., No. M2012-00890-COA-R3CV, rev’d, 451 S.W.3d 375 (Tenn. 2014), with Ferguson v. Middle Tennessee State Univ., 451 S.W.3d 375 (Tenn. 2014) (unanimously overruling Judge Kirby).