Can I wait a year to refile after a dismissal without prejudice?

By Judge Pamela B. Johnson, Knoxville

“We’ll see.”  It is a phrase so many of us heard as children and, if you’re like me, it is a phrase you now use with your own children.

Q: “Mom, can we stop for ice cream?”

A: “We’ll see.” 

Q: “Mom, can I buy a toy?”

A: “We’ll see.”

It is a phrase so common that it is included in Urban Dictionary. “We’ll see” is defined as a “term parents use when a child wants something and they don’t say yes or no.” The phrase “[u]sually means ‘no’, but sometimes it means ‘yes’.”

As a Workers’ Compensation Judge, I find myself using the phrase frequently when asked in seminars whether the “savings statute” applies to dismissals without prejudice granted by the Court of Workers’ Compensation Claims. I must respond, “we’ll see,” because the issue has not yet been litigated.

Generally, we know a dismissal without prejudice allows the petitioner to refile the claim within a certain period. The “savings statute” in section 28-1-105 (2016) sets forth when a petitioner can refile a claim. The statute provides:

If the action is commenced within the time limited by a rule or statute of limitation, but the judgment or decree is rendered against the plaintiff upon any ground no concluding the plaintiff’s right of action . . . the plaintiff . . . may from time to time, commence a new action within one (1) year after the reversal or arrest.

Likewise, Rule 41.01 of the Tennessee Rules of Civil Procedure allows a petitioner to seek a voluntary dismissal (also known as a nonsuit) without prejudice, but provides that a dismissal [without prejudice] operates as an adjudication upon the merits when filed by a petitioner who has twice dismissed a claim.

So, in comparison, section 28-1-105 addresses time, while Rule 41.01 addresses the number of voluntary dismissals (nonsuits) that can be taken.

Now you may be asking yourself, what does all this mean for a claim pending before a Workers’ Compensation Judge and the Court of Workers’ Compensation Claims? We’ll see.

Why? Because there are terms in section 28-1-105 and Rule 41.01 that have not yet been interpreted in the context of the Workers’ Compensation Reform Act of 2013.

And what does the Workers’ Compensation Reform Act of 2013 tell us on these issues? Section 50-6-239(c)(3) (2016) says, “If a party who has filed a request for hearing files a notice of nonsuit of the action, either party shall have ninety (90) days from the date of the order of dismissal to institute an action for recovery of benefits under this chapter[.]”

You may now be asking yourself, what if no request for hearing has been filed? How do section 50-6-239(c)(3) and section 28-1-105 work together? Is there any further guidance in the Bureau’s Mediation and Hearing Procedures?

Rule 0800-02-21-.20 (November, 2016) says, “On no more than one occasion, a party may voluntarily non-suit a petition for benefit determination at any time after it has been filed unless the employee has been awarded temporary benefits through an interlocutory order. If a party files a notice of voluntary non-suit, either party may file a new claim to recover benefits within ninety (90) days of the order of dismissal.”

But, wait, what about involuntary dismissals without prejudice? Well, you guessed it.  We’ll see.

Until these issues are litigated, proceed with caution.

4 thoughts on “Can I wait a year to refile after a dismissal without prejudice?

  1. Robert Davies says:

    Good article, however it should also be noted that the “savings statute” does not apply to the Second Injury Fund since it is a State entity. (Williams v. Cravens 214 SW2d 57 and Webster v TN Bd of Regents, 9025 SW2d 412)
    Does the 90 day Rule toll the Statute of Limitations against the SIF? – “We’ll see.


  2. Brian Dunigan says:

    I understand the Court’s desire to help practitioners with articles like these. However, I remain concerned that articles like this one come dangerously close to providing an improper “advisory opinion” from the judiciary on issues of law which are not before the court in any pending controversy. With respect to the Court, I continue to believe the better practice would be to avoid addressing issues of substantive law on the Court’s Blog.


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