Comparative Joinder Requires Service Within 90-days?
posted on March 1st, 2006 in Comparative Fault by clintIt appears, at least in federal court, that the 90-day clock of comparative joinder statute at TENN.CODE ANN. § 20-1-119 starts running even thought the defendant has not identified the other tortfeasor in his answer, and that the defendant must be served within 90 days. In Kizziah v. Fire Management Systems, 2006 WL 218026(E.D.Tenn.), the defendant (“FMS”) filed its answer in a products liability case alleging comparative fault on July 14, 2004. The defendant did not identify the other tortfeasor in its answer, stating only that “the alleged injuries complained of in the complaint were caused directly and proximately by the acts of persons other than [the defendant].” In responses to the plaintiff’s discovery, the defendant identified the other tortfeasor (“CSMI”) on September 3, 2004. The plaintiffs moved to amend their complaint to add CSMI on October 4, 2004, and served CSMI on October 21, 2004. CSMI moved to dismiss claiming that the 90-days had passed. The district court held that the 90-day period began to run with the filing of FMS’ answer on July 14, 2004, and the plaintiffs had 90-days from that date to file their amended complaint and obtain service of process on CSMI, which they failed to do. Relying on Soper v. Wal-Mart Stores, Inc., 923 F.Supp. 1032 (M.D.Tenn.1996) and Romine v. Fernandez, 124 S.W.3d 599 (Tenn.Ct.App.2003), the district court found that the plaintiffs were compelled to file and serve an amended complaint within the 90-day time period. The court is correct that process must issue, but service is not required by statute within 90 days. This is a bad decision.