Tennessee Business Litigation Lawyers Blog
Under Tennessee law, the prevailing party in a lawsuit, with some exceptions, cannot recover a judgment from the opposing party in the case for the attorney’s fees the prevailing party incurred in prosecuting or defending the case. By far, the two most prevalent exceptions to that rule are: (1) When the parties have a contract by which they have agreed that the prevailing party is entitled to an award of attorney’s fees; and (2) when a statute authorizes the recovery of attorney’s fees. Many contracts have terms which permit the prevailing party to recover attorney’s fees. Several statutes, such as the Tennessee Consumer Protection Act, the Tennessee Uniform Trade Secrets Act, and the Tennessee Residential Property Disclosure Act, authorize an award of attorney’s fees to a prevailing party.
Apart from the above two exceptions, there is an exception which is less likely to be applicable in most cases, but, nevertheless, can be quite useful. Also, that exception does not usually come into play in the original lawsuit, but comes into play in a subsequent lawsuit. That exception is embodied in the independent tort doctrine. The doctrine was first adopted by the Supreme Court of Tennessee in the 1985 case of Pullman Standard, Inc. v. Abex Corporation. The independent tort doctrine is sometimes now referred to as the “Pullman Rule” or the “Pullman Exception.”
To understand the applicability and contours of the independent tort doctrine, it helps to understand the facts in Pullman which were:
- Pullman was a manufacturer
- Pullman manufactured the superstructure of a railroad car
- Pullman purchased the wheels for the car from Abex
- in 1978, a tragic railroad car derailment occurred in Waverly, Tennessee
- After the derailment, the National Transportation Safety Board and the Federal Railroad Administration concluded that the derailment was caused by the Abex manufactured wheel which was defective
- As a result of the derailment, Pullman was sued and incurred attorney’s fees defending itself
- Pullman filed suit against Abex for the attorney’s fees and expenses it had incurred in defending itself
In Pullman, the court adopted the independent tort doctrine as set forth in the Restatement (Second) of Torts. The independent tort doctrine permits a party which has had to expend attorney’s fees “by bringing or defending an action against a third party” because of the tort of another party to recover its attorney’s fees from the party which committed the tort.
Our firm recently used the independent tort doctrine successfully in a case against a developer. The developer had failed to delineate properly which areas of a horizontal property regime belonged to which owner of the two homes in the regime. As a result, our clients, one of the owners of the two properties in the regime, incurred attorney’s fees in a lawsuit involving the other homeowner in the regime. Employing the independent tort doctrine, on behalf of our clients, we asserted claims against the developer for its negligence in creating and filing a plat which caused the confusion and uncertainty about the ownership of the properties which resulted in the lawsuit between the property owners and, consequently, resulted in our clients incurring significant attorney’s fees.
The independent tort doctrine, notably, can be used where the attorney’s fees were incurred either in defending a claim or in bringing a claim. In the case we handled for the clients discussed above, the clients were the plaintiffs in the lawsuit against the other property owner.
The independent tort doctrine has its limits. A very informative case to consider if you are defending a claim based on that doctrine is one from the Court of Appeals of Georgia, Atlanta Woman’s Club, Inc. v. Washburne, 450 S.E.2d 239 (1994). In that case, the court emphasized that, to recover using the independent tort doctrine, the plaintiff must prove that the negligence of the defendant was the proximate cause of the plaintiff’s incurring attorney’s fees to prosecute or to defend the lawsuit with the third party. In that case, the court determined that the negligence of the defendant was only a remote cause of the litigation which resulted in the plaintiff incurring attorney’s fees. Thus, the court held that the plaintiff was not entitled to recover its attorney’s fees under the independent tort doctrine.
For Tennessee trial lawyers, the independent tort doctrine is something of which to be aware whenever a client has incurred attorney’s fees because of another’s negligence or because of any other tort, including an intentional tort, committed by that party.