McNabb v. Highways, Inc.

• Decision Date: 03 March 2003
• Citation: 98 S.W.3d 649
• Parties: Anthony McNABB, et al. v. HIGHWAYS, INC., et al.
• Court: Tennessee Supreme Court

Page 649

98 S.W.3d 649

Anthony McNABB, et al. v. HIGHWAYS, INC., et al.

Supreme Court of Tennessee, at Knoxville.

November 13, 2002 Session.

Heard at Cleveland November 7, 2002.¹

March 3, 2003.

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

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.

We granted this appeal to determine whether the trial court erred in granting summary judgment to the defendant based on the plaintiffs 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 plaintiffs settlement with one tortfeasor did not require dismissal of the plaintiffs 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 plaintiffs 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.

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."

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 plaintiffs 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.

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

[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...