Forget About Permission or Leave of Court! Just File Your Amended Complaint When the Defendant Alleges Comparative Fault of Third Party.

 Tenn. Code Ann sec. 20-1-119 was enacted following the adoption of comparative fault by the Tennessee Supreme Court. The statute provides the means for a plaintiff to pursue non-parties who are identified as being at-fault in a defendant's answer or amended answer. The plaintiff has 90 days to either amend the complaint, and join the third party in the pending suit, or file a separate action against the third party. The claims against the third party are considered timely, for statute of limitations (but not statute of repose) if the plaintiff completes the necessary steps within 90 days. Following the enactment of the statute, a number of appellate opinions addressed various factual scenarios where plaintiffs failed to file their amended complaints within 90 days. Filing the motion to amend within 90 days was insufficient. The motion had to be granted, and the amended complaint filed, within 90 days of when the defendant alleged the fault of the third party.

Last year it became much easier for the plaintiff to comply with the 90 day deadline. The 2007 amendment to Rule 15.01 of the Tennessee Rules of Civil Procedure added the following language to the end of the rule: 

For amendments adding defendants pursuant to Tenn. Code Ann. §20-1-119, however, written consent of the adverse party or leave of court is not required.

Now, when you need to amend to join a non-party who is identified in a defendant's answer, there is no need to seek leave of court or the permission of your opponent. Just file and serve your amended complaint and there is no excuse for failing to act within the 90 day window.

Dan Berexa
Nashville, Tennessee