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Carlen v. Jackson9/19/2001
The defendant asserted a comparative fault defense to a tort claim against him arising from his operation of a truck. He attributed fault to General Motors Corporation and Carlen Motors Inc. the manufacturer and prospective seller, respectively, of the truck. The defendant did not respond timely to a request for admission and summary judgment was entered that the defendant could not assert the affirmative defense attributing fault to General Motors and Carlen Motors Inc.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
William H. Inman, Sr. J., delivered the opinion of the court, in which William B. Cain and Patricia J. Cottrell, J.J., joined.
OPINION
I.
Plaintiff Walter Carlen was a passenger in a Chevrolet pickup truck driven by a prospective purchaser, Ronald E. Jackson, when the right front wheel left the pavement, apparently causing the driver to oversteer after the truck came back on the pavement and looped before striking a tree. Both the passenger and driver were seriously injured. Passenger sued the driver, whose answer, upon information and belief, attributed fault to General Motors Corporation , the manufacturer of the truck, and to Carlen Motors, Inc., the local dealer.
The plaintiffs resolved to determine the basis for the affirmative defense of a defective product and served defendant with interrogatories and requests for admissions seeking the disclosure of the information upon which the affirmative defense was based, since they were aware of no facts which would provide them a reasonable basis for asserting claims against GMC and Carlen Motors, Inc. The plaintiffs were allowed ninety (90) days to amend their complaint to assert such claims.
On February 23, 2000, the defendant was served with plaintiffs' First Set of Interrogatories and Request for Production of Documents. One of the Interrogatories required the defendant to "state the facts upon which you rely for each affirmative defense in your answer."
Another Interrogatory, number 11, was akin, since it required the defendant to reveal the facts or evidence upon which any liability claim against any entity might be asserted. A copy of any documents upon which the affirmative defense was based was required.
On the same day, February 23, 2000, the defendant was served with the plaintiffs' Second Set of Interrogatories and Request for Production of Documents. The plaintiffs also served 3 Requests for Admissions: (1) Admit that Carlen Motors is not at fault for the accident, (2) Admit that GMC is not at fault, (3) Admit that the defendant has no evidence of any defect in the truck.
Responses were due by April 25, 2000, after an agreed extension.
The defendant did not respond, and the plaintiffs filed their motion on June 6, 2000, for a partial summary judgment respecting the affirmative defense that had been asserted on information and belief. The motion was filed forty days after the responses were due. We reproduce part of the Order entered by the trial judge, as pertinent here:
Plaintiffs' Motion for Partial Summary Judgment is hereby granted as to the Defendant's affirmative defense claim regarding comparative fault of General Motors and Carlen Motors. Therefore, the Defendant cannot assert as an affirmative defense claim, comparative fault on General Motors, the manufacturer of the automobile which is the subject matter of this litigation and Carlen Motors, the car dealer. Accordingly, the Court finds that there is no genuine issue as to any material fact regarding this affirmative defense claim pursuant to Rule 56 of the Tennessee Rules of Civil Pr
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