Motion to Strike Affirmative Defenses Including Comparative Fault
In many cases we file a motion to strike portions of the defendant's answer because it falls short of the requirements of pleading under Tennessee law. The most common concern we have is a comparative fault defense that does not actually identify the person (or persons) that the defendant intends to blame. Tennessee law is clear on this point: a defendant cannot attribute fault to a nonparty who is not sufficiently identified to allow the plaintiff to plead and serve process on the nonparty under Tenn. Code Ann. sec. 20-1-119. Brown v. Wal-Mart Discount Cities, 12 S.W.3d 785, 786 (Tenn. 2000). This rule is vital to plaintiffs - who need a specific allegation against a nonparty in order to invoke the 90 day rule of T.C.A. 20-1-119 - and to courts - who need to balance their dockets by having a definite cutoff where all the potential parties are in the case.
We generally try to enforce the rule by filing a timely motion to strike if a defendant's answer says the defendant wants to rely on comparative fault to reduce the plaintiff's damages, but does not actually name any alleged tortfeasors (or their alleged negligent acts and/or omissions). Here is one example of a Memorandum in Support of a Motion to Strike we used in a recent case. Download the file here.