United States District Court, S.D. Ohio, Eastern Division.

SHANICE J. PARKER, Plaintiff,

v.

ERIC M. MILLER, et al., Defendants.

Case No.: 2:16-cv-1143

|

02/15/2018

Opinion

GEORGE C. SMITH, JUDGE, UNITED STATES DISTRICT COURT

 

OPINION AND ORDER

*1 This matter is before the Court upon the Motion of Defendants Eric Miller, Dakotaland Transportation, Inc., and Fowlds Brothers Trucking, Inc. for Summary Judgment as to Plaintiff’s Claims against Fowlds Brothers, and Motion for Partial Summary Judgment with Respect to Plaintiff’s Punitive Damages Claim (“Defendants’ Motion”) (Doc. 21). The motion is fully briefed and ripe for disposition. For the following reasons, Defendants’ Motion is DENIED.

 

 

1. BACKGROUND

Plaintiff Shanice Parker was involved in a single-car accident on April 12, 2016, while traveling eastbound on I-70 in Licking County, Ohio due to a malfunctioning tie rod in her vehicle. (Doc. 8, Am. Compl. ¶ 14). Parker’s vehicle was disabled in the right-most lane of eastbound travel on I-70. (Id. ¶ 15). Shortly after, Ohio State Highway Patrol Trooper Rodney Hart arrived in his patrol car and parked it in the right-most lane directly behind Parker’s disabled vehicle. (Id. ¶ 16). Hart activated the emergency lights on his patrol car and placed road flares to indicate that oncoming traffic should move over into the middle or left-most lanes. (Id. ¶ 17). Hart also asked Parker to be seated in the front passenger seat of the patrol car so he could interview her regarding her single-car accident. (Id. ¶ 18). Within minutes, Parker was seriously injured when a tractor trailer driven by Defendant Eric Miller crashed into the parked patrol car in which Parker was seated. (Id. ¶¶ 19–28).

 

At the time of the accident, Miller was a truck driver employed by Defendant Dakotaland Transportation, Inc. (“Dakotaland”) and was driving the truck as part of his job duties. (Id. ¶ 31). The truck involved in the accident was leased by Dakotaland from Defendant Fowlds Brothers Trucking, Inc. (“Fowlds”). (Id. ¶¶ 7–8; Doc. 21-1, PAGEID #309, Aff. of Jerald Fowlds, ¶ 5). Miller, Dakotaland, and Fowlds are all citizens of South Dakota, whereas Parker is a citizen of Ohio and/or Washington, D.C. (Doc. 8, Am. Compl. ¶¶ 1, 3–5).

 

In her Amended Complaint, Parker asserts claims for (1) negligence in operating a motor vehicle (against Miller); (2) statutory traffic violations establishing negligence per se (against Miller); (3) vicarious liability for Miller’s negligence (against Dakotaland and Fowlds); (4) strict liability for Miller’s negligence (against Dakotaland); (5) negligence in hiring, training, supervising, and retaining Miller (against Dakotaland and Fowlds); (6) statutory violations establishing negligence per se in the hiring, training, supervising, and retaining Miller (against Dakotaland and Fowlds); and (7) negligent entrustment of the tractor trailer to Miller (against Dakotaland and Fowlds). (Doc. 8, Am. Compl. ¶¶ 42–68).

 

Defendants previously moved to dismiss Parker’s claims for punitive damages against all three defendants. (Doc. 10). The Court granted that motion as to the claims for punitive damages against Dakotaland and Fowlds, but denied the motion as to the punitive damages sought from Miller. (Doc. 26).

 

*2 Defendants have now moved for summary judgment on all claims against Fowlds as well as partial summary judgment on Parker’s claims for punitive damages against Miller. (Doc. 21). Defendants do not at this time seek judgment on any claims against Dakotaland.

 

 

1. SUMMARY JUDGMENT STANDARD

Defendants move for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. Summary judgment is appropriate when “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); Berryman v. SuperValu Holdings, Inc., 669 F.3d 714, 716–17 (6th Cir. 2012). The Court’s purpose in considering a summary judgment motion is not “to weigh the evidence and determine the truth of the matter” but to “determine whether there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). A genuine issue for trial exists if the Court finds a jury could return a verdict, based on “sufficient evidence,” in favor of the nonmoving party; evidence that is “merely colorable” or “not significantly probative,” however, is not enough to defeat summary judgment. Id. at 249–50.

 

The party seeking summary judgment shoulders the initial burden of presenting the court with law and argument in support of its motion as well as identifying the relevant portions of “ ‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,’ which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting Fed. R. Civ. P. 56). If this initial burden is satisfied, the burden then shifts to the nonmoving party to set forth specific facts showing that there is a genuine issue for trial. See Fed. R. Civ. P. 56(e); see also Cox v. Kentucky Dep’t of Transp., 53 F.3d 146, 150 (6th Cir. 1995) (after burden shifts, nonmovant must “produce evidence that results in a conflict of material fact to be resolved by a jury”).

 

In considering the factual allegations and evidence presented in a motion for summary judgment, the Court “views factual evidence in the light most favorable to the non-moving party and draws all reasonable inferences in that party’s favor.” Barrett v. Whirlpool Corp., 556 F.3d 502, 511 (6th Cir. 2009). But self-serving affidavits alone are not enough to create an issue of fact sufficient to survive summary judgment. Johnson v. Washington Cty. Career Ctr., 982 F. Supp. 2d 779, 788 (S.D. Ohio 2013) (Marbley, J.). “The mere existence of a scintilla of evidence to support [the non-moving party’s] position will be insufficient; there must be evidence on which the jury could reasonably find for the [non-moving party].” Copeland v. Machulis, 57 F.3d 476, 479 (6th Cir. 1995); see also Anderson, 477 U.S. at 251.

 

 

III. DISCUSSION

Defendants have moved for summary judgment on all claims against Fowlds as well as on the punitive damages claims against Miller. The Court will discuss each of these claims in turn.

 

 

1. Claims against Fowlds

Defendants argue that Fowlds cannot be vicariously liable for Miller’s negligence in operating the truck, nor liable for its own negligence in hiring Miller or entrusting him with the truck, because Fowlds was merely the owner of the truck and not Miller’s employer. Defendants are correct that each of the negligence claims against Fowlds require an employment relationship between Miller and Fowlds or that Fowlds itself entrusted the truck to Miller. Osborne v. Lyles, 63 Ohio St. 3d 326, 329, 587 N.E.2d 825, 828 (1992) (vicarious liability); Peterson v. Buckeye Steel Casings, 133 Ohio App. 3d 715, 729, 729 N.E.2d 813, 823 (10th Dist. 1999) (negligent hiring, supervision, training, and retention); Gulla v. Straus, 154 Ohio St. 193, 198, 93 N.E.2d 662, 665 (1950).1

 

*3 Parker counters that Dakotaland (whom the parties agree was Miller’s employer at the time of the accident) is so related to Fowlds that they are essentially the same entity, and therefore Miller was also employed by Fowlds and Fowlds also entrusted the truck to Miller. Defendants do not challenge the claims of vicarious or direct negligence against Dakotaland in this motion; therefore, the only question before the Court is whether there is a genuine issue of material fact regarding the identity of Fowlds and Dakotaland.

 

 

1. The Graves Amendment

Both parties argue for and against the close relationship between Dakotaland and Fowlds with reference to whether the two companies are “affiliates” as defined by the Graves Amendment. 49 U.S.C. § 30106. The Graves Amendment was enacted to limit vicarious liability for companies in the business of renting or leasing vehicles and who could not prevent a lessee from driving a vehicle to a state which might hold a vehicle owner strictly liable for the negligence of the driver. Stratton v. Wallace, No. 11-CV-74-A HKS, 2014 WL 3809479, at *6 (W.D.N.Y. Aug. 1, 2014). The Graves Amendment states, in pertinent part:

(a) In general.—An owner of a motor vehicle that rents or leases the vehicle to a person (or an affiliate of the owner) shall not be liable under the law of any State or political subdivision thereof, by reason of being the owner of the vehicle (or an affiliate of the owner), for harm to persons or property that results or arises out of the use, operation, or possession of the vehicle during the period of the rental or lease, if—

(1) the owner (or an affiliate of the owner) is engaged in the trade or business of renting or leasing motor vehicles; and

(2) there is no negligence or criminal wrongdoing on the part of the owner (or an affiliate of the owner).

* * *

 

(d) Definitions.—In this section, the following definitions apply:

(1) Affiliate.—The term “affiliate” means a person other than the owner that directly or indirectly controls, is controlled by, or is under common control with the owner. In the preceding sentence, the term “control” means the power to direct the management and policies of a person whether through ownership of voting securities or otherwise.

 

Defendants argue that the Graves Amendment shields Fowlds from vicarious liability because it is merely the owner of the truck. Parker responds that the protection of the Graves Amendment is unavailable to Fowlds because its affiliate, Dakotaland, was itself negligent in hiring Miller and entrusting him with the truck. Defendants counter that Dakotaland is not Fowlds’ affiliate because Fowlds did not have the power to direct the management and policies of Dakotaland.

 

Unfortunately, all of these arguments and responses are misplaced because the Graves Amendment is simply inapplicable to the case at bar. The plain language of the Amendment limits its application to claims that a vehicle owner is “liable under the law of any State or political subdivision thereof, by reason of being the owner of the vehicle.” 49 U.S.C. § 30106(a) (emphasis added). Parker has not alleged any claims against Fowlds based on its ownership of the truck. Rather, all allegations against Fowlds stem from Parker’s position that Miller was actually employed by Fowlds in addition to Dakotaland. (Doc. 8, Am. Compl. ¶ 52) (“At all times, Defendant Miller was the employee, agent, servant, and/or independent contractor for Defendant Dakotaland and/or Defendant Fowlds Brothers. Accordingly, Defendant Dakotaland and/or Defendant Fowlds Brothers are/is vicariously liable for the acts of Defendant Miller.”).

 

*4 Nor does Ohio impose the kind of strict, vicarious liability on vehicle lessors that the Graves Amendment was designed to limit. Trolio v. McLendon, 4 Ohio App. 2d 30, 34, 211 N.E.2d 65, 68 (7th Dist. 1965), rev’d on other grounds, 9 Ohio St. 2d 103, 224 N.E.2d 117 (1967) (“Ohio does not have a statute comparable to Section 402 of the California Vehicle Code, and there is no vicarious liability on the owner of a car, while such car is being operated by anyone else, merely because one is the title owner of the car.”). Instead, Ohio imposes liability on a vehicle owner for the negligence of the driver only when the driver is an employee or agent of the owner and acting within the scope of the employment or agency. Id.; Kellerman v. J. S. Durig Co., 176 Ohio St. 320, 323–24, 199 N.E.2d 562, 565 (1964).

 

Accordingly, it is irrelevant whether Fowlds and Dakotaland qualify as “affiliates” under the Graves Amendment. What matters is whether Fowlds was Miller’s employer under Ohio law.

 

 

2. Alter ego analysis

If Fowlds and Dakotaland are alter egos of the same entity, then Fowlds was also Miller’s employer and could be liable vicariously for Miller’s negligence as well as Fowlds’ own negligence in hiring Miller and entrusting him with the truck.

 

In determining whether one entity is the alter ego of another under Ohio law, courts consider whether the two entities:

(1) observe corporate formalities;

(2) keep corporate records;

(3) are financially independent;

(4) share the same employees and corporate officers;

(5) engage in the same business enterprise;

(6) have the same address and phone lines;

(7) use the same assets;

(8) complete the same jobs;

 

(9) maintain separate books, tax returns, and financial statements; and (10) exert control over the daily affairs of the other. Brown v. Tellermate Holdings Ltd., No. 2:11-CV-1122, 2015 WL 5047981, at *12–13 (S.D. Ohio Aug. 27, 2015) (Graham, J.) (citing Microsys Computing, Inc. v. Dynamic Data Sys., LLC, No. 4:05 CV 2205, 2006 WL 2225821, *6 (N.D. Ohio Aug. 2, 2006) and Estate of Thomson ex rel. Estate of Rakestraw v. Toyota Motor Corp. Worldwide, 545 F.3d 357, 362–63 (6th Cir. 2008)).

 

Although the parties do not speak to these precise factors in their briefs (because they erroneously believed the Graves Amendment “affiliate” analysis governs), the facts relevant to both the “affiliate” and “alter ego” analyses are similar. Viewing the evidence of the relationship between Fowlds and Dakotaland in the light most favorable to Parker, it is clear that the two entities are related by much more than a leasing agreement.

 

To begin with, both companies have identical shareholders in identical proportions: the eponymous Fowlds Brothers, Bruce and Jerry Fowlds, each own 50% of both companies. (Doc. 30-8, Bruce Fowlds Dep. at 6–7). Bruce Fowlds is the president of both companies; Jerry Fowlds is the vice president of both companies. (Id. at 15–16). Both companies operate out of the same building in Sioux Falls, South Dakota and have the same mailing address. (Id. at 16). Starting around 2015, the companies shifted some of Dakotaland’s employees to Fowlds in order for both companies to qualify as small employers under the Affordable Care Act. (Id. at 17). All of Fowlds’ employees are loaned back to Dakotaland, though their payroll is processed through Fowlds. (Id. at 16–17).

 

The bulk of Fowlds’ business is purchasing tractors and trailers for the purpose of leasing them to Dakotaland. Occasionally, Fowlds has taken a loan from Dakotaland in order to make down payments on new trucks, and then paid the loan back to Dakotaland. (Id. at 19). Bruce Fowlds testified that “there really isn’t any business at Fowlds Brothers other than Dakotaland transfers money into Fowlds Brothers’ account that has automatic payments. That’s about the extent of Fowlds Brothers’ business.” (Id. at 17). Bruce later clarified that Fowlds also leases about six tractor trailers to individual drivers. (Id. at 21).

 

*5 In support of the companies’ separate operations, Defendants point to the companies’ separate bank accounts and a consulting agreement executed in January 2016 (three months prior to the accident causing Parker’s injuries) which provides that Fowlds will act as a consultant for Dakotaland in exchange for a weekly payment of $25,000. (Doc. 31-1, PAGEID# 556–564). This arrangement would be more convincing as evidence that Fowlds was merely providing third-party staffing services were it not for the fact that all of the employees loaned by Fowlds to Dakotaland were originally Dakotaland employees in the first place who were shifted over to Fowlds for tax purposes, without any apparent change or interruption in their job duties or reporting structure.

 

When construing the facts in the light most favorable to Parker, the Court cannot say as a matter of law that Fowlds and Dakotaland are not alter egos of one another. Defendants’ Motion as to the claims against Fowlds is therefore DENIED.

 

 

1. Punitive damages claims against Miller

Punitive damages may be awarded if a plaintiff establishes that “[t]he actions or omissions of that defendant demonstrate malice or aggravated or egregious fraud, or that defendant as principal or master knowingly authorized, participated in, or ratified actions or omissions of an agent or servant that so demonstrate.” Ohio Rev. Code § 2315.21(C)(1). Parker and Defendants both identified the correct standard for actual malice:

Actual malice, necessary for an award of punitive damages, is (1) that state of mind under which a person’s conduct is characterized by hatred, ill will or a spirit

of revenge, or (2) a conscious disregard for the rights and safety of other persons

 

that has a great probability of causing substantial harm. Preston v. Murty, 32 Ohio St. 3d 334, 334, 512 N.E.2d 1174, 1174 (1987). “[A]ctual malice can be inferred from conduct and surrounding circumstances which may be characterized as reckless, wanton, willful or gross.” Villella v. Waikem Motors, Inc., 45 Ohio St. 3d 36, 37, 543 N.E.2d 464, 467 (1989) holding modified by Moskovitz v. Mt. Sinai Med. Ctr., 69 Ohio St. 3d 638, 635 N.E.2d 331 (1994). But the actions of a defendant must rise above mere negligence or recklessness to be considered actual malice. “The focus is on the actor’s conscious disregard of an almost certain risk of substantial harm. This distinguishes ‘malicious’ from ‘non-malicious’ conduct.” Kuebler v. Gemini Transp., No. 3:12-CV-114, 2013 WL 6410608, at *5 (S.D. Ohio Dec. 9, 2013) (Rose, J.). “The type of aggravated circumstances sufficient to support an award of punitive damages in a motor vehicle accident case may include intoxication and deliberate actions to flee the scene or evade responsibility.” MacNeill v. Wyatt, 917 F. Supp. 2d 726, 730 (S.D. Ohio 2013) (Litkovitz, M.J.) (citing Cabe v. Lunich, 70 Ohio St. 3d 598, 640 N.E.2d 159, 163 (1994)).

 

Parker argues that Miller’s actions demonstrate a conscious disregard for Parker’s safety when he did not stop, slow down, or change lanes despite having ample time and visibility. Miller’s deposition testimony is not inconsistent with this conclusion. Miller confirmed the following facts:

• The weather conditions at the time of the crash were sunny and clear; traffic conditions were steady, but not busy. (Doc. 30-7, Miller Dep. at 299–300).
• Miller crested a hill shortly before the crash; from the top of the hill, he saw the flashing lights of the patrol car in which Parker was seated about a half-mile to a mile away. (Id. at 301, 305). The lights appeared to be in either the far-right lane in which he was driving the tractor trailer, or on the shoulder. (Id. at 301).
• As he was at the top of the hill, Miller noticed traffic moving over into the middle or far left lanes. (Id. at 306). Miller estimated he had 30–60 seconds to move over into a different lane before he reached the lights. (Id. at 308).

*6 • In the half-mile Miller estimated was between the top of the hill and the patrol car, he would have had time to bring his truck to a complete stop on the shoulder. (Id. at 308).

• Miller knew that his duty as a truck driver when he sees lights ahead is to slow down or change lanes, but did neither of these things. He does not know what caused him to do neither of these things when he saw the flashing lights on the patrol car. (Id. at 307).
• Miller first applied his brakes when he was 20–30 feet away from the patrol car. (Id. at 305).
• Miller knew that a collision between his truck and the patrol car could cause serious injury: “[T]he minute before, I was, like, please, nobody get killed in this, was, like, the last thought that went through my head before—before the impact.” (Id. at 311).

 

Defendants argue that Miller’s failure to avoid the crash “amount[s] to a driving mistake” that is “insufficient to demonstrate that Miller acted with the requisite intent or mental state to support a jury finding that damages could be awarded.” (Doc. 22, Mem. in Supp. of Mot. for Summ. J. at 10; Doc. 31, Reply in Supp. of Mot. for Summ. J. at 9). But Miller was aware of a parked vehicle with flashing lights in his path; he knew that a collision with that vehicle carried a risk of serious injury or death; he had a half-mile to a mile and 30–60 seconds to stop, slow down, or change lanes; and he has no explanation for why he nevertheless failed to take any action to avoid the crash until he hit the brakes 20-30 feet away from the patrol car. The Court disagrees that no reasonable factfinder could find a conscious disregard for Parker’s safety on these facts. Defendants’ Motion as to the punitive damages claims against Miller is therefore DENIED.

 

 

1. CONCLUSION

For the foregoing reasons, Defendants’ Motion for Summary Judgment as to Plaintiff’s Claims against Fowlds Brothers, and Motion for Partial Summary Judgment with Respect to Plaintiff’s Punitive Damages Claim, is DENIED.

 

The parties are encouraged to reconsider their position on participation in the March settlement week. If the parties do wish to participate, they may contact Magistrate Judge Deavers’ chambers to schedule a mediation through the Court.

 

The Clerk shall remove Document 21 from the Court’s pending motions list.

IT IS SO ORDERED.

 

 

/s/ George C. Smith

GEORGE C. SMITH, JUDGE

UNITED STATES DISTRICT COURT

All Citations

Slip Copy, 2018 WL 898981

 

 

Footnotes

1

As a federal court sitting in diversity, the Court applies the substantive law of its forum state. Gasperini v. Ctr. for Humanities, Inc., 518 U.S. 415, 427 (1996).

 

 

Court of Appeals of Tennessee,

AT JACKSON.

STEVEN SANTORE, ET AL.

v.

KARLOSS STEVENSON, ET AL.

No. W2017-01098-COA-R3-CV

|

November 14, 2017 Session

|

02/20/2018

Appeal from the Circuit Court for Shelby CountyNo. CT-002966-14 Robert L. Childers, Judge

At issue in this personal injury action is whether the trial court erred by striking the defendant’s affirmative defense that an unknown “John Doe” driver of an Averitt Express truck was comparatively at fault for the plaintiff’s injuries. Relying on Brown v. Wal-Mart Discount Cities, 12 S.W.3d 785 (Tenn. 2000) and Tenn. Code Ann. § 20-1-119, the trial court struck the affirmative defense as to John Doe and Averitt Express upon the finding that the defendant failed to sufficiently identify John Doe so that the plaintiff may serve process on John Doe. We have determined the trial court’s discretionary decision to strike the affirmative defense of comparative fault as to John Doe and Averitt Express was premature because the defendant was not afforded a reasonable opportunity to engage in pre-trial discovery to endeavor as to the identity of John Doe in sufficient detail for the plaintiff to serve process on John Doe. Therefore, we reverse and remand for further proceedings consistent with this opinion.

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

Attorneys and Law Firms

John I. Houseal, Jr. and Brandon D. Pettes, Memphis, Tennessee, for the appellants, Cordova Concrete, Inc. and Karloss Stevenson.

Mark N. Geller and Glenn K. Vines, Memphis, Tennessee, for the appellees, Steven Santore and Stephanie Santore.

Martin W. Zummach, Southaven, Mississippi, for the appellee, Averitt Express, Inc.

Opinion

FRANK G. CLEMENT JR., P.J., M.S. delivered the opinion of the Court, in which J. STEVEN STAFFORD, P.J., W.S and ARNOLD B. GOLDIN, J., joined.

 

OPINION

FRANK G. CLEMENT JR., P.J., M.S.

*1 On November 7, 2013, Steven Santore was injured at a Love’s Travel Stop in Memphis, Tennessee as he was walking through the fuel aisles on his way to the convenience store located at the travel stop. On July 8, 2014, Mr. Santore and his wife Mrs. Stephanie Santore (“Plaintiffs”) filed suit against Cordova Concrete, Inc. and its employee, Karloss Stevenson, (collectively “CCI”), alleging Mr. Stevenson struck Mr. Santore while driving a CCI truck. CCI timely filed an answer in which it did not allege that a non-party was comparatively at fault.

 

At some point, not identified in the record, CCI learned of a 911 call that was made from the scene at the time of the accident. Thereafter, CCI issued a subpoena duces tecum to the City of Memphis to obtain the 911 recording. After a period of time passed, counsel for CCI realized that the city would not respond to a subpoena but it would respond to a public records request. As a result, on May 18, 2016, CCI made a public records request to the City of Memphis to obtain the 911 call records. On June 1, 2016, CCI obtained the records requested which consisted of an audio file of the 911 call and a Background Event Chronology.

 

The 911 recording did not reveal the identity of the caller or the identity of the vehicle that struck Mr. Santore. The Background Event Chronology identified, among other things, the time the call was made to the dispatcher, when emergency personnel were dispatched to the scene, and the phone number of the 911 caller but not the caller’s name or address. Not to be deterred, after making repeated phone calls to the number listed in the Background Event Chronology, CCI was able to identify the 911 caller, an over-the-road truck driver who resided in another state. After coordinating an acceptable time, the caller’s deposition was taken on August 29, 2016. During the deposition, the caller identified the vehicle that struck Mr. Santore as an Averitt tractor trailer truck; however, the caller was unable to identify the driver.

 

On September 20, 2016, which was more than two years after the complaint was filed but less than three months after obtaining the public records from the City of Memphis, CCI filed a motion to amend its answer to assert an affirmative defense of comparative fault against “John Doe” and Averitt Express, Inc. (“Averitt”). While Plaintiffs initially contested this motion, the parties agreed to allow the amendment pursuant to Tenn. R. Civ. P. 15.01 and submitted an agreed order to the court. The trial court granted the order, and it was entered on September 29, 2016. CCI then promptly filed an amended answer containing the above referenced affirmative defense. Shortly thereafter, Plaintiffs filed an amended complaint to add John Doe and Averitt as additional defendants.

 

On October 17, 2016, Averitt filed its Answer to Plaintiffs’ amended complaint and a Motion to Dismiss. Eleven days later, and before a hearing could be held on the prior motion, Averitt filed a Motion to Reconsider and Strike the Amended Answer of Defendants. In the latter motion, Averitt sought to strike Defendants’ comparative fault affirmative defense as to both John Doe and Averitt.

 

*2 On November 16, 2016, the trial court, relying on Brown v. Wal-Mart Discount Cities, 12 S.W.3d 785 (Tenn. 2000) and Tenn. Code Ann. § 20-1-119, ruled that the affirmative defense in CCI’s amended answer against John Doe would be “stricken” due to the failure of CCI to identify John Doe to a degree sufficient to allow Plaintiffs to effectuate service upon him; however, the order did not strike the affirmative defense of comparative fault as to Averitt.

 

On November 29, 2016, Averitt filed a Renewed Motion to Dismiss Defendants’ Allegation of Comparative Fault and Plaintiffs’ Second Amended Complaint against Averitt. At the hearing on this motion, the trial court ordered that the affirmative defense of comparative fault as to Averitt be stricken from CCI’s amended answer.

 

On January 17, 2017, the trial court entered an order modifying its November 16, 2016 order by “striking” CCI’s affirmative defense claims of comparative fault and “striking” Plaintiffs’ claims against both John Doe and Averitt. The trial court’s order stated, “the answer [of CCI] did not identify ‘John Doe’ to a degree sufficient to allow Plaintiffs to effectuate service upon ‘John Doe.’ ” As for Averitt, the court found that CCI’s amended answer failed to state a “legal cause of action upon which relief may be granted.” Based on these findings, the trial court ruled that Plaintiffs could not rely on Tenn. Code Ann. § 20-1-119 to allege vicarious liability against Averitt or direct negligence against John Doe. As we will discuss in more detail below, none of these orders “dismissed” Plaintiffs’ claims against Averitt or John Doe.

 

On January 19, 2017, CCI filed a motion in the trial court for a Tenn. R. App. P. 9 interlocutory appeal which the trial court granted on February 16, 2017. Eight days later, on February 23, 2017, CCI filed an application for a Tenn. R. App. P. 9 interlocutory appeal with this court.1 On March 13, 2017, we denied CCI’s application and the case was remanded to the trial court.

 

Following this court’s discretionary decision to deny the application for a Rule 9 interlocutory appeal, CCI filed a Tenn. R. Civ. P. 60.01 motion in the trial court seeking to modify the January 17, 2017 order. The purpose of the motion was to obtain the entry of a final judgment as to all claims by or against Averitt and John Doe.2 The trial court granted the motion to modify and in an order entered on May 19, 2017, which the trial court designated as a final judgment pursuant to Tenn. R. Civ. P. 54.02, the trial court granted Averitt’s Renewed Motion to Dismiss and amended its January 17, 2017 order pursuant to which it dismissed all claims against Averitt and John Doe.

 

*3 On May 31, 2017, CCI initiated this appeal by filing its Tenn. R. App. P. 3 notice of appeal from the final judgment entered on May 19, 2017.

 

 

ANALYSIS

1. TIMELINESS OF APPEAL – SUBJECT MATTER JURISDICTION

Plaintiffs and Averitt (collectively, “Appellees”) contend that this court lacks subject matter jurisdiction over this Tenn. R. App. P. 3 appeal because the appeal is untimely. This issue was first raised with this court in Appellees’ motions to dismiss this appeal prior to oral arguments. We denied the motions and Appellees have provided no new facts or additional authorities that change our decision.

 

Although a “final judgment” is not a prerequisite to a Rule 9 interlocutory appeal, as distinguished from an appeal as of right pursuant to Tenn. R. App. P. 3, in this court’s 2017 ruling on CCI’s application for a Tenn. R. App. P. 9 interlocutory appeal it was determined that the January 17, 2017 order, which was the subject of that appeal, was not a final judgment.3 As our Supreme Court explained in In re Estate of Henderson:

 

A final judgment is one that resolves all the issues in the case, “leaving nothing else for the trial court to do.” State ex rel. McAllister v. Goode, 968 S.W.2d 834, 840 (Tenn. Ct. App. 1997). In contrast, an order that adjudicates fewer than all of the claims, rights, or liabilities of all the parties is not final, but is subject to revision any time before the entry of a final judgment. Tenn. R. App. P. 3(a). Such an order is interlocutory or interim in nature and generally cannot be appealed as of right. Id. However, there is a mechanism, found in Rule 54.02 of the Tennessee Rules of Civil Procedure, by which a party may appeal an order that adjudicates fewer than all of the claims, rights, or liabilities of fewer than all the parties. Rule 54.02 provides as follows:

 

When more than one claim for relief is present in an action … or when multiple parties are involved, the court … may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. In the absence of such determination and direction, any order or other form of decision, however designated, that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time before the entry of the judgment adjudicating all the claims and the rights and liabilities of all the parties.

(Emphasis added). Thus, Rule 54.02 requires, as a prerequisite to an appeal as of right of an interlocutory order, the certification by the trial judge that the judge has directed the entry of a final judgment as to one or more but fewer than all of the issues of the parties, and that the court has made an express determination that there is no just reason for delay. Stidham v. Fickle Heirs, 643 S.W.2d 324, 325 (Tenn. 1982). Such certification by the trial court creates a final judgment appealable as of right. Id.

*4 In re Estate of Henderson, 121 S.W.3d 643, 645-46 (Tenn. 2003) (emphasis added).

 

As this court stated with clarity in the order dismissing the application for permission to appeal, the interlocutory order appealed from did “not explicitly dismiss the matters as to John Doe or Averitt Express, Inc.” Furthermore, we expressly noted that the order appealed from did not “make the finding required by Rule 54.02 [of the Tennessee Rules of Civil Procedure] requiring ‘an express determination that there is no just reason for delay and upon an express direction for the entry of judgment.’ ” In this Rule 3 appeal the Appellees have failed to identify any additional facts or authority that would change our decision.

 

It is also significant that our 2017 order denying the Rule 9 application for permission to appeal constituted the law of the case. See Memphis Pub. Co. v. Tennessee Petroleum Underground Storage Tank Bd., 975 S.W.2d 303, 306 (Tenn. 1998) (“[U]nder the law of the case doctrine, an appellate court’s decision on an issue of law is binding in later trials and appeals of the same case if the facts on the second trial or appeal are substantially the same as the facts in the first trial or appeal.”) In that order, we determined that the order appealed–the trial court’s January 17, 2017 order–was not a final judgment.

 

For the foregoing reasons, we have subject matter jurisdiction over this Rule 3 appeal.4

 

 

1. COMPARATIVE FAULT ATTRIBUTED TO JOHN DOE AND AVERITT

Appellees raise numerous issues with the trial court’s orders in regard to CCI’s fourth affirmative defense.5 We have determined, however, that we need only address one: whether the trial court erred in striking John Doe from CCI’s fourth affirmative defense.

 

*5 Averitt moved to strike the affirmative defense of comparative fault as to John Doe pursuant to Tenn. R. Civ. P. 12.06 on the basis that CCI’s identification of John Doe was so insufficient that Plaintiffs would not be able to plead or serve process on John Doe. The purposes of a motion to strike under Tenn. R. Civ. P. 12.06 were discussed at length in Doe v. Mama Taori’s Premium Pizza, LLC, No. M1998-00992-COA-R9-CV, 2001 WL 327906, at *1 (Tenn. Ct. App. April 5, 2001). Relevant here, is the purpose “to object to insufficient defenses,” and the purpose “to enforce Tenn. R. Civ. P. 8.05’s requirement that pleadings be simple, concise and direct.” Id. at *2 (citing Tenn. R. Civ. P. 12.06(2) & (3); other citations omitted). “When used for their intended purpose, these motions help the parties and the courts avoid the time and money wasted litigating spurious issues by dispensing with these issues prior to trial.” Id. (citations omitted). These principles notwithstanding, “[d]espite their salutary purpose, motions to strike are not favored because the remedy they offer is drastic and because they are frequently used simply as a dilatory tactic.” Id. (citations omitted).

A Tenn. R. Civ. P. 12.06 motion may be used to test the “legal sufficiency” of an affirmative defense. Usrey v. Lewis, 553 S.W.2d 612, 614 (Tenn. Ct. App. 1977). To succeed with a Tenn. R. Civ. P. 12.06 motion, the moving party must show both that the challenged claim or defense does not involve a question of fact or law on which the non-moving party can succeed and that failure to strike the challenged claim or defense will be prejudicial to the moving party. SEC v. McCaskey, 56 F. Supp. 2d 323, 326 (S.D.N.Y. 1999); Abrams v. Lightolier, Inc., 702 F. Supp. 509, 511 (D.N.J. 1988); 5A Federal Practice and Procedure § 1380.

…

 

Whether a particular defense is insufficient for the purposes of a Tenn. R. Civ. P. 12.06 motion depends on the nature of the claim. 5A Federal Practice and Procedure § 1381. An affirmative defense is insufficient if, as a matter of law, the defense cannot succeed under any circumstance or if it bears no possible relationship to the matters in controversy. Brown & Williamson Tobacco Corp. v. United States, 201 F.2d 819, 822 (6th Cir. 1953); FSLIC v. Burdette, 696 F. Supp. 1183, 1186 (E.D. Tenn. 1988). A motion to strike a defense should not be granted if there is any doubt that the challenged claim or defense might raise an issue of fact or law, Nwakpuda v. Falley’s, Inc., 14 F. Supp. 2d 1213, 1215 (D. Kan. 1998); Sunshine Cellular v. Vanguard Cellular Sys., Inc., 810 F. Supp. 486, 499-500 (S.D.N.Y. 1992); 2A Moore’s Federal Practice ¶ 12:21[2], or if the insufficiency of the defense is not readily apparent. 5A Federal Practice and Procedure § 1381, at 678.

Id. at *3.

 

“Trial courts have considerable discretion with regard to granting Tenn. R. Civ. P. 12.06 motions.” Id. (citations omitted). Accordingly, we “review decisions regarding Tenn. R. Civ. P. 12.06 motions using the deferential ‘abuse of discretion’ standard of review.” Id.

 

The abuse of discretion standard does not permit reviewing courts to substitute their discretion for that of the trial court. Lee Med., Inc. v. Beecher, 312 S.W.3d 515, 524 (Tenn. 2010). Nevertheless, the abuse of discretion standard of review does not immunize a lower court’s decision from any meaningful appellate scrutiny. Id.

Discretionary decisions must take the applicable law and the relevant facts into account. An abuse of discretion occurs when a court strays beyond the applicable legal standards or when it fails to properly consider the factors customarily used to guide the particular discretionary decision.

…

 

[R]eviewing courts should review a [trial] court’s discretionary decision to determine (1) whether the factual basis for the decision is properly supported by evidence in the record, (2) whether the [trial] court properly identified and applied the most appropriate legal principles applicable to the decision, and (3) whether the [trial] court’s decision was within the range of acceptable alternative dispositions. When called upon to review a [trial] court’s discretionary decision, the reviewing court should review the underlying factual findings using the preponderance of the evidence standard contained in Tenn. R. App. P. 13(d) and should review the [trial] court’s legal determinations de novo without any presumption of correctness.

*6 Id. at 524-25 (internal citations omitted).

 

Here, the trial court initially granted Averitt’s motion, in part, by striking John Doe, but not Averitt, from CCI’s fourth affirmative defense alleging comparative fault. In reaching this decision, the trial court relied on Brown v. Wal-Mart Discount Cities, 12 S.W.3d 785 (Tenn. 2000) and Tenn. Code Ann. § 20-1-119. Applying the holding in Brown “that a defendant may not attribute fault to a non-party who is not identified sufficiently to allow the plaintiff to plead and serve process on such person,” to the fact that CCI’s “identification” of John Doe was so vague and deficient that Plaintiff could not serve process on John Doe, the trial court ruled that the affirmative defense should be stricken. Although we agree that the identification of John Doe was insufficient, we have determined that the decision to strike the affirmative defense before CCI had a reasonable opportunity to discover the identity of John Doe was premature.

 

We begin by reviewing the Supreme Court’s ruling in Brown. The plaintiff in Brown was injured after slipping on ice and water that had been spilled in the defendant’s store. Brown, 12 S.W.3d at 785. The issue in Brown arose from the defendant’s argument that the jury should have been allowed to consider the fault of the unidentified tortfeasor who was responsible for spilling the ice and water. Id. The trial judge initially allowed the jury to consider the fault of the unidentified tortfeasor, and the jury assigned 30% of fault to the defendant and 70% to the unidentified tortfeasor. Id. However, upon plaintiff’s motion for a new trial, “the trial judge issued an order assigning 100% of plaintiff’s damages to defendant, finding that it had erred in allowing the jury to assign fault to the unidentified tortfeasor.” Id. The trial court denied plaintiff’s motion for a new trial and held defendant liable for the entire judgment. Id.

 

The case was appealed and we affirmed the trial court’s judgment, “emphasizing the jury’s finding that the defendant was negligent and holding that the defendant should not be able to attribute any of the fault to an unidentified nonparty unless the defendant can prove the ‘existence’ of the nonparty ‘whose fault contributed to the plaintiff’s injuries by clear and convincing evidence.’ ” Id. Our Supreme Court reviewed the case and determined that a defendant “may not attribute fault to a nonparty who is not identified sufficiently to allow the plaintiff to plead and serve process on such person pursuant to Tenn. Code Ann. § 20-1-119 (1994 & Supp. 1999), even if the defendant establishes the nonparty’s existence by clear and convincing evidence.” Id at 786. In analyzing the issue of unidentified nonparty comparative fault, the Supreme Court commented:

Rule 8.03 is a rule of pleading which allows a defendant to allege that a nonparty contributed to the plaintiff’s damages, ultimately allowing the plaintiff to plead and serve, and the trier of fact to assign fault to, the comparative tortfeasor alleged in defendant’s answer. Rule 8.03 contemplates that at the pleading stage, either the identity or a description of another potential tortfeasor is sufficient to initiate discovery. Cf. George v. Alexander, 931 S.W.2d 517, 521-22 (Tenn. 1996) (reasoning that a defendant intending to argue that a nonparty was the cause in fact of plaintiff’s injury must identify or describe the nonparty in strict adherence to Tenn. R. Civ. P. 8.03 because a plaintiff should be afforded timely notice of the other potential tortfeasor). Tennessee’s case law and statutory law both indicate, however, that when pre-trial discovery fails to identify the “described” comparative tortfeasor alleged in defendant’s answer, the defendant should not be allowed to argue, and the trier of fact should not be permitted to make a determination, that a percentage of fault should be attributed to the unidentified nonparty.

*7 Id. at 787 (emphasis added). As the court in Brown went on to explain, “[e]vidence of the existence of a phantom tortfeasor is not sufficient identification for purposes of pleading and serving process.” Id. at 788. “[U]nless the nonparty is identified sufficiently to allow the plaintiff to plead and serve process on such person pursuant to Tenn. Code Ann. § 20–1–119, the trial court should not permit the attribution of fault to the nonparty.” Id.

 

Here, the trial court correctly found that CCI failed to sufficiently identify John Doe so that Plaintiffs could plead and serve process on him; however, we have concluded that CCI was not afforded a reasonable opportunity to engage in pre-trial discovery to sufficiently identify John Doe. Admittedly, more than two years had passed since the complaint was filed; however, the record reveals that the delay was not the result of a lack of diligence on the part of CCI.

 

As noted earlier, although the record does not reveal when CCI learned of the 911 call, in April or May of 2016, CCI issued a subpoena to the City of Memphis to obtain a recording of the 911 call. When that process proved to be unsuccessful, CCI made a public records request, and CCI obtained those records on June 1, 2016. Thereafter, and because the identity of the caller was not revealed in the recording or the documents provided by the city, CCI made numerous calls to the phone number identified in the records to locate the caller and to take his deposition.

 

After speaking with the 911 caller, CCI was able to schedule his deposition for August 29, 2016. Based on the testimony of the 911 caller, CCI promptly amended it answer to attribute fault against John Doe and Averitt on September 29, 2016. Thus, in approximately four months, CCI obtained a recording of the 911 call, identified and located the 911 caller, deposed him, discovered that Plaintiff was allegedly struck by an Averitt truck that was driven by an unknown driver, and filed its amended answer in which it attributed fault to Averitt and John Doe.

 

Relying on CCI’s amended answer and Tenn. Code Ann. § 20-1-119, Plaintiffs filed an amended complaint on October 7, 2016, in which they added John Doe and Averitt as defendants. On November 11, 2016, CCI propounded its First Set of Interrogatories, Requests for Production of Documents, and Requests for Admissions to Averitt in order to discover, inter alia, the identity of Averitt’s driver, John Doe. In the interim, on October 17, 2016 and October 28, 2016, Averitt filed separate motions to strike the affirmative defenses asserted by CCI and to dismiss John Doe and Averitt. The trial court then entered an order striking CCI’s affirmative defense and dismissing John Doe and Averitt. This all occurred without Averitt providing any responses to the discovery propounded by CCI.

 

Based on the foregoing time lines, CCI contends the trial court deprived it of the opportunity to conduct pre-trial discovery of Averitt in order to obtain information concerning the identify of John Doe, which would hopefully provide sufficient details to afford Plaintiff the opportunity to serve process on John Doe. We agree. Considering the foregoing, we believe the trial court erred by striking CCI’s affirmative defense of comparative fault and dismissing Plaintiffs’ claims against John Doe and Averitt without affording CCI a reasonable opportunity to conduct discovery concerning, inter alia, the identify of John Doe.

 

*8 The foregoing notwithstanding, Averitt insists that CCI’s reliance on the opportunity to conduct discovery is misplaced. Averitt submits that the issue is whether the trial court’s decision “to grant Averitt’s Motion to Strike, and thus, in effect, to deny CCI’s Motion to Amend their Answer to allege comparative fault against Averitt and a ‘John Doe’ driver was an abuse of discretion.”

 

Averitt insists the trial court “found” that CCI’s failure to discover the identity of and to depose the 911 caller constituted an unfair delay. As Averitt puts it, during the November 10, 2016 hearing on Averitt’s motions, the trial court “found an unfair delay between the date of the accident; filing of the lawsuit; and the attempted amendment to add an unnamed, unknown Defendant.” CCI counters by denying that the trial court made this a ground or basis for its ruling as vehemently as Averitt asserts that it did. We have determined that Averitt’s reliance on the trial court’s statement from the bench is unfounded or, at best, misplaced. Upon a close review of the record, the delay in identifying and deposing the 911 caller does not appear to be the reason or a ground for the trial judge’s ruling because the transcript from the hearing was neither incorporated by reference in the order at issue nor did the order mention “unfair delay.”

 

To begin, as CCI notes in its reply brief, while the trial court initially expressed frustration with the fact that the case had been pending for two years before CCI asserted the affirmative defense of comparative fault against John Doe and Averitt, once the trial court heard the reasons for the delay, as explained by John Houseal, counsel for CCI at the November 10, 2016 hearing, the court appeared satisfied with the explanation of why CCI did not know that a 911 caller had identified the vehicle that struck Plaintiff as an Averitt truck. This is evident from the trial court’s statement immediately following counsel’s explanation: “Counsel, forgive me, I now understand a little bit more about why there was some delay, given the injuries of the Plaintiff. I didn’t mean to be critical if I appeared to be critical of anybody, Mr. Houseal.” The relevant colloquy between the trial judge and counsel for CCI reads as follows:

THE COURT: I want you to find it. I’m not real pleased about the Consent Order being entered adding another party at this late date. I had the case set for trial in October. Then you all, September 29th, entered an order by consent of you two bringing in somebody else in three years after the accident. I think that’s way late. So I want you to tell me why I shouldn’t undo this Consent Order and keep you from amending your answer to join [Averitt]. I think it’s a basic matter of fairness here. How is Averitt going to investigate at this late date? It’s prejudice to this proposed Defendant. That’s my concern in this case. You tell me why there’s not prejudice to them by you all waiting so long, and you can’t even tell me when you got the name.

 

In the discussion that followed the trial court asked counsel for CCI to justify the delay in asserting the affirmative defense of comparative fault:

1. HOUSEAL: We can provide those dates. The sequence, Your Honor, on 911 is we issued a subpoena originally, and they don’t respond to subpoenas, as we found out.

THE COURT: “They” the Government?

1. HOUSEAL: 911 people.

*9 MR. PETTES: The City of Memphis.

THE COURT: Whatever it’s called.

1. HOUSEAL: Whatever it’s called is right. Because we issued a subpoena and we keep waiting, and they don’t answer us. So we file a request for information, and we get it. We get the recording. Well, the recording doesn’t identify the party. So what we did then was we actually got the documents. When you get the documents and read through it, they don’t identify. But there was one phone number that was unknown and so we start tracking that. So from a diligence standpoint we think we’ve done a pretty good job. We ended up having to track that phone number down, and when we do we started trying to call it, and call it, and call it. When we finally get in touch with that individual, we asked him if he happened to be the 911 caller and he tells us that he was. So we interview him.

THE COURT: When was that?

1. HOUSEAL: It’s shortly before this deposition.

THE COURT: You don’t have that information in your file?

1. HOUSEAL: Well, we have to get it. I mean, today I didn’t come prepared to address that question.

THE COURT: Well, let’s recess then, and I want that information.

1. HOUSEAL: We’d be glad to provide it. But I don’t want Your Honor to think that we were asleep at the switch. Because as soon as we get this kind of information, we’re absolutely going to reveal it. This man — we don’t have control of him. He’s not even in this State. At that time he’s a truck driver so you can imagine trying to track that down. So we did. And that’s how we came up with him, and we shared that information with the Plaintiffs when we got it. We shared the recording with him as well. So that’s how we tracked him down. When we tracked him down, the 911 recording doesn’t identify Averitt. So nobody knows until we depose that fella about whether he believes it’s an Averitt truck or not. That’s the timeline on this. That piece of it.

…

 

1. HOUSEAL: … Your Honor asked the date about how soon we moved on this, and it was within three weeks of our discovery of that information. So we just checked on that. To answer Your Honor on that, we moved as expeditiously as possible on it. I have the deposition, but I didn’t bring it today, that addresses what the scope is. I’m not sure that’s really our issue. Averitt is identified … by the witness. Whether or not Mr. Zummach can prove that the witness is wrong or if he didn’t accurately identify the trailer or tractor, that’s a matter of proof, it seems to me. The requirements that 119(a) requires of us is to identify, as soon as we have information, anyone that could have caused or contributed to the injury — which I thought we had done and still think that we have done — so it gives the Plaintiffs the opportunity to do what they did.

…

 

THE COURT: … Counsel, forgive me, I now understand a little bit more about why there was some delay, given the injuries of the Plaintiff. I didn’t mean to be critical if I appeared to be critical of anybody, Mr. Houseal.

 

Based on the foregoing, and having considered the relevant facts and authorities, we reverse and remand with instructions to reinstate the affirmative defenses asserted by CCI in which it attributes comparative fault against John Doe and Averitt, to reinstate Plaintiffs’ amended complaint in which it asserts claims against John Doe and Averitt, and to afford the parties a reasonable period of time in which to conduct discovery concerning, inter alia, the identify of John Doe.

 

 

IN CONCLUSION

*10 The judgment of the trial court is reversed and this matter is remanded for further proceedings consistent with this opinion. Costs of appeal are assessed against Averitt Express, Inc.

 

All Citations

Slip Copy, 2018 WL 1003581

 

 

Footnotes

1

Pursuant to Tenn. R. App. P. 9, an appeal by permission may be taken from an interlocutory order of a trial court “only upon application and in the discretion of the trial and appellate court.” While neither controlling nor fully measuring the discretion of the trial court or the appellate court, the reasons that may be considered may include the need “to prevent needless, expensive, and protracted litigation,” as well as “the probability of reversal, and whether an interlocutory appeal will result in a net reduction in the duration and expense of the litigation if the challenged order is reversed.” Tenn. R. App. P. 9. Nevertheless, as Tenn. R. App. P. 9 expressly states: “Failure to seek or obtain interlocutory review shall not limit the scope of review upon an appeal as of right from entry of the final judgment.”

2

Tenn. R. Civ. P. 54.02 states:

When more than one claim for relief is present in an action, whether as a claim, counterclaim, cross-claim, or third party claim, or when multiple parties are involved, the court, whether at law or in equity, may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. In the absence of such determination and direction, any order or other form of decision, however designated, that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time before the entry of the judgment adjudicating all the claims and the rights and liabilities of all the parties.

3

See Court of Appeals Docket No: W2017-00362-COA-R9-CV.

4

Although it is not raised as a separate issue, in their argument concerning subject matter jurisdiction Appellees contend the trial court erred in granting CCI relief under Tenn. R. Civ. P. 60.01 because the motion should have been based on Tenn. R. Civ. P. 60.02. The order at issue–the trial court’s January 17, 2017 order–was not a final judgment; to the contrary, it was an interlocutory order that was subject to amendment without reliance on Tenn. R. Civ. P. 60. As a result, we need not address this contention.

5

The parties list the following as the issues that are relevant to comparative fault:

Issues raised by Stevenson and CCI:

1. Whether Defendants Cordova Concrete, Inc. and Karloss Stevenson properly pled the comparative fault of the “John Doe” operator of the Averitt Express tractor trailer where the operator is alleged to be an employee of Averitt operating the subject tractor trailer in the course and scope of his employment.
2. Whether Defendants may plead the comparative fault of alleged principal/employer Averitt under a vicarious liability theory where the alleged employee/agent John Doe, operator of the Averitt tractor trailer at issue, could not be sufficiently identified, at time of pleading, to allow Appellees to plead and serve process on such person pursuant to Tenn. Code Ann. § 20-1-119.

Issues raised by Steven and Stephanie Santore:

1. Whether, under Tenn. Code Ann. § 20-1-119, Plaintiffs have stated a claim upon which relief can be granted in their amended complaint against John Doe?
2. Whether, under Tenn. Code Ann. § 20-1-119, Plaintiffs have stated a claim upon which relief can be granted in their third amended complaint against Averitt?

Issue raised by Averitt:

1. Averitt submits that the issue is whether or not the decision of Judge Childers to grant Averitt’s Motion to Strike, and thus, in effect, to deny CCI’s Motion to Amend their Answer to allege comparative fault against Averitt and a “John Doe” driver was an abuse of discretion.