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Old Republic Life Insurance Co. v. Woody

Court of Appeals of Tennessee, Knoxville

March 17, 2017


          Session October 18, 2016

         Appeal from the Circuit Court for McMinn County No. 2013-CV-117 J. Michael Sharp, Judge

          This case involves the interpretation and application of the prior suit pending doctrine. Old Republic Life Insurance Company (Insurer) brought this action in the McMinn County Circuit Court (the trial court) as subrogee of Darrell King, its insured, who had been injured in an accident. King's attorneys filed three separate notices of appearance on his behalf. King also moved to intervene in his Insurer's suit, but later withdrew his motion. Still later, Insurer moved to join King as a necessary and indispensible party. The trial court granted the motion. More than two and half years after Insurer's complaint was filed, King filed a complaint in Davidson County seeking compensation for his injuries. The trial court granted King's motion to dismiss this action based on the prior suit pending doctrine. We hold that, under the prior suit pending doctrine, the trial court, McMinn County Circuit Court, is the proper forum. We vacate the judgment of the trial court and remand for futher proceedings.

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

          Sean W. Martin and Ashley M. Baxter, Chattanooga, Tennessee, for the appellant, Old Republic Life Insurance Company.

          John Thomas Feeney, Nashville, Tennessee, for the appellees, Roberta Woody and Osborn Transportation, Inc.

          William B. Hicky, Nashville, Tennessee, for the appellee, Darrell King.

          Charles D. Susano, Jr., J., delivered the opinion of the court, in which Andy D. Bennett and Thomas R. Frierson, II, joined.




         On April 25, 2012, an accident occurred in McMinn County between two tractor-trailer vehicles. Roberta Woody, who drove a truck for Osborn Transportation, Inc., allegedly backed her tractor-trailer into one driven by Darrell King, causing him injury. King's employer provided him with insurance coverage through Insurer. Insurer reimbursed King for the costs of his medical treatment and wage losses resulting from the accident.

         Nearly a year after the accident, on April 12, 2013, Insurer filed this action in the trial court against Woody and Osborn Transportation (defendants), as the subrogee of King, alleging that King had assigned his negligence claim to Insurer so that it could recover the benefits paid by it to King. Insurer sought a judgment for its subrogation interest.

         On September 19, 2014, attorney William B. Hicky filed a notice of appearance stating that he "will represent subrogor Darrell King in this cause." Two months later, Hicky filed a motion requesting the trial court to admit Georgia attorney Paul Reginald Ayerbe pro hac vice, to represent King, which the court granted. On December 11, 2014, the trial court entered an agreed order setting a trial date of November 19, 2015. On March 10, 2015, Ayerbe entered a notice of appearance "on behalf of the Plaintiff." It is undisputed that Ayerbe represented King; but if there had been any doubt, it was dispelled by Ayerbe filing a second entry of appearance on September 28, 2015 "as counsel for Plaintiff Darrell King." At the same time, King filed a motion to intervene as of right under Tenn. R. Civ. P. 24.01 His motion states, in pertinent part, as follows:

(1)Darrell King claims an interest relating to the transaction that is the subject matter of this action and Darrell King is so situated that the disposition of the action may, as a practical matter, impede or impair his ability to protect that interest as required by Rule 24.01; and
(2)No existing party to this action is adequately representing Darrell King's interest in this lawsuit. A scheduling [o]rder was entered in December, 2014. To date, there has been no party depositions, no medical depositions, no depositions for use at trial, no medical testimony taken for use at trial, and counsel for [Insurer] a/s/o Darrell King has made no contact with Darrell King. Accordingly, Mr. King is entirely unaware that a trial has been set down in this matter. As such, there is no way Mr. King's interests have been or will be adequately protected.
Consequently, Darrell King requests this Court to enter an [o]rder, pursuant to Rule 24.01 . . . allowing him to intervene in this action and to file the Complaint which is attached as Exhibit "A" to this Motion.

         A motion hearing took place on October 29, 2015, at which time the procedural history took an unusual turn. Attorney Ayerbe announced an agreement between King and the defendants:

MR. AYERBE: I believe the defendants are willing to stipulate on the record that they will not oppose Mr. King filing a separate action either on the basis of the statute of limitations or on any kind of waiver or estoppel basis relating to this action. And if that stipulation is made, then Mr. King is going to withdraw his motion to intervene in this action.
* * *
MR. FEENEY [Defendants' attorney]: Early on, the case was filed in Georgia, and the case was dismissed in Georgia under the agreement that the defendants would not raise the statute of ...

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