January 13–19, 2024

Everything is shut down due to inclement/inconsiderate weather, so just two opinions this week.  You’ll get more analysis than usual to make up for the weak content, though.

• Driver drives into a fence before hitting a dumpster and construction materials, injuring Passenger.  Passenger settles with Driver/Driver’s insurance company and signs a broad release of liability releasing “all other persons, firms or corporations of and from any and every claim” of liability arising out of the accident.  Passenger later sues the company that placed the construction materials on the street for negligence.  Construction Company: Passenger unambiguously released “all other persons, firms or corporations,” and we’re a person, firm, or corporation, so we’re third-party beneficiaries of the Driver’s release.  Tennessee Court of Appeals: “[E]ven when a release was unambiguous, this Court has looked to the facts and circumstances surrounding the execution of the release to ascertain the parties’ intent,” and here, “a genuine issue of material fact exists as to whether [Passenger] knew about her potential claim against [Construction Company] and intended to release this claim,” so Passenger’s case against Construction Company continues.  [Editorial note: The Sixth Circuit recently employed slightly different reasoning when adjudicating essentially the same question.]  (DAH)

• Plaintiff—angry about an allegedly defective concrete foundation that Defendant built for him—sues Defendant.  Plaintiff’s lawsuit languishes for several years, during which time Plaintiff fails to comply with an order to allow Defendant to inspect evidence.  Defendant eventually moves to dismiss Plaintiff’s lawsuit with prejudice for failure to prosecute, and the trial court orally grants the motion.  Before the trial court can enter its written order, though, Plaintiff nonsuits his case without prejudice.  Tennessee Court of Appeals: And that one neat trick enables the Plaintiff to evade all consequences, refile his lawsuit within a year, and restart this litigation anew if he likes, because an oral ruling on a motion to dismiss for failure to prosecute is not a ruling on the merits and, thus, does not preclude a plaintiff from nonsuiting under Tennessee Rule of Civil Procedure 41.  “We are mindful that a contrary decision in this case may result in better policy outcomes,” though, and the Advisory Commission on the Rules of Practice & Procedure should take a look.  [Editorial note: The outcome of this case is wrong, though that’s because the Defendant inexplicably agreed that the vested rights exception to Rule 41 did not apply and also failed to argue that an involuntary dismissal for violating court orders is a nonsuit-surviving sanction.  In related news, the Tennessee Court of Appeals really needs to make up its mind about whether judges’ oral rulings are inchoate decrees that have “no force whatever” until they are reduced to writing (as the Tennessee Supreme Court has instructed and the Tennessee Court of Appeals has near-uniformly held for decades), or whether, instead, they are “substantive decisions” that result in the “purely administrative” signing and filing of a written order later on (as the Tennessee Court of Appeals has twice held when judges violated recusal rules).  The conflict between those two irreconcilable lines of authority is presented directly in another pending case right now.] (DAH)