Chapter 67: Savings Statute

The Case: Foster v. St. Joseph Hosp. , 158 S.W.3d 418 (Tenn. Ct. App. 2004).

The Basic Facts: The grand-nephew of a decedent, after being given power of attorney, brought a wrongful death action against a hospital and doctors for medical malpractice. The grand-nephew then dismissed the claim voluntarily, but refiled action, adding the decedent's wife as a Plaintiff, within one year of dismissing the suit, but two years after the decedent's death, which was beyond the statute of limitations period.

The Bottom Line:

• "Because Tennessee law favors the resolution of disputes on their merits, the savings statute must be given a broad and liberal construction. Henley v. Cobb, 916 S.W.2d 915, 916 (Tenn. 1996). The purpose behind the savings statute is ''to aid the courts in administering the law fairly between litigants without binding them to minor and technical mistakes made by their counsel in interpreting the complexities of our laws of procedure.'' Id. at 917 (quoting Gen. Accident Fire & Life Assurance Corp. v. Kirkland, 356 S.W.2d 283, 285 (Tenn. 1962)). To determine whether the savings statute is applicable, the court must ascertain whether the defendant had notice: '[N]otice to the party affected is the true test of the statute's applicability. . . . 'The important consideration is that, by invoking judicial aid, a litigant gives timely notice to his adversary of a present purpose to maintain his rights before the courts.'' Id. at 917-18 (quoting Burns v. People's Tel. & Tel. Co., 33 S.W.2d 76, 78 (Tenn. 1930)). Thus, the savings statute is only applicable when the original complaint and the new complaint allege substantially the same cause of action, which includes identity of the parties. See Turner v. Aldor Co. of Nashville, 827 S.W.2d 318, 321 (Tenn. Ct. App. 1991). It is not necessary that the two complaints be identical, only that the allegations arise out of the same transaction or occurrence. See Energy Sav. Prods., Inc. v. Carney, 737 S.W.2d 783, 784-85 (Tenn. Ct. App. 1987) (holding that the savings statute was applicable to the second complaint, which had been amended to add a new claim, because the claim arose out of the same conduct, transaction, or occurrence alleged in the original action and the plaintiff, therefore, could have added the claim to the first action under Tennessee Rule of Civil Procedure 15). In determining whether there is identity of the parties between the two actions, we are mindful that, though the caption of a case is intended to identify the parties, the allegations of the complaint itself dictate the true parties to the lawsuit. Goss v. Hutchins, 751 S.W.2d 821, 824-25 (Tenn. 1988)." 158 S.W.3d at 422.
• "If the original federal lawsuit commenced the action, we must determine whether the savings statute was applicable. As noted above, the savings statute is applicable where the original complaint and the new complaint allege substantially the same cause of action, including identity of the parties. See Turner v. Aldor Co. of Nashville, 827 S.W.2d 318, 321 (Tenn. Ct. App. 1991). The two complaints need not be identical, so long as they arise out of the same transaction or occurrence. See Energy Sav. Prods., Inc. v. Carney, 737 S.W.2d 783, 784-85 (Tenn. Ct. App. 1987)." Id. at 425.
• "Given the Tennessee Supreme Court's stated liberality in Chapman toward plaintiffs sometimes struggling to name the proper party plaintiff in a wrongful death action, as well as the purpose behind the savings statute, we must hold that the savings statute is applicable in this case. Despite the defects of the pleadings in the instant case, from the time they received service of process in the first action, the Defendants have been on notice that they would have to defend themselves against allegations of medical malpractice arising out of Mrs. Foster's death. With the addition of Mr. Foster in the second action, the defect in naming the proper party plaintiff was cured with no prejudice to the Defendants. Since the savings statute was applicable, the Plaintiffs' claim is not time-barred, and we find that the trial court erred in dismissing the complaint." Id.

Other Sources of Note: The savings statute is found at Tenn. Code Ann. § 28-1-105. It is a rule of substantive law that a federal court must apply in a diversity case. Agricultural Services Ass'n, Inc. v. Ferry-Morris Seed Co., Inc., 551 F.2d 1057, 1063 (6th Cir. 1977).

Recent Cases: Sowell v. Estate of Davis , No. W2009-00571-COA-R3-CV, 2009 WL 4929402 (Tenn. Ct. App. Dec. 21, 2009) (holding trial court erred in finding savings statute in applicable; further holding defendant and the estate of defendant were identical parties for purposes of re-filing under the savings statute where first case was dismissed prior to ruling on motion to dismiss for failure to substitute proper party and defendant died after dismissal leaving plaintiff no choice but to file second suit against the estate of defendant).