Dennis Harold Ultsch v. HTI Memorial Hospital Corporation

IN THE SUPREME COURT OF TENNESSEE
07/20/2023
AT NASHVILLE
April 6, 2022 Session

DENNIS HAROLD ULTSCH v. HTI MEMORIAL HOSPITAL
CORPORATION

Appeal by Permission from the Court of Appeals
Circuit Court for Davidson County
No. 19C1086 Joseph P. Binkley, Jr., Judge
___________________________________

No. M2020-00341-SC-R11-CV
___________________________________

“When there is a conflict between the common law and a statute, the provision of the statute
must prevail.” Graves v. Ill. Cent. R.R. Co., 148 S.W. 239, 242 (Tenn. 1912). That
longstanding rule is the key to resolving this case, which pits a common-law rule governing
vicarious liability claims against certain procedural provisions of Tennessee’s Health Care
Liability Act. The defendant in this case moved to dismiss the plaintiff’s claims under the
common-law rule. The trial court granted that motion, but the Court of Appeals reversed
after concluding that application of the common-law rule would conflict with the Act. We
agree that the Act necessarily implies an intent to abrogate the common-law rule in the
circumstances of this case and affirm the Court of Appeals’ decision.

Tenn. R. App. P. 11 Appeal by Permission; Judgment of the Court of Appeals
Affirmed; Judgment of the Trial Court Reversed; Remanded to the Trial Court

SARAH K. CAMPBELL, J., announced the judgment of the Court and delivered the opinion
of the Court with respect to parts I(B), II, and III(B)–(E), in which SHARON G. LEE and
HOLLY KIRBY, JJ., join, and an opinion with respect to parts I(A) and III(A), in which
HOLLY KIRBY, J., joins. JEFFREY S. BIVINS, J., delivered the opinion of the Court with
respect to part II(A), in which ROGER A. PAGE, C.J., and SHARON G. LEE, J., join, and an
opinion dissenting in part, in which ROGER A. PAGE, C.J., joins. SHARON G. LEE, J.,
delivered a separate opinion.

Bryan Essary and Madison Wait, Nashville, Tennessee, for the appellant, HTI Memorial
Hospital Corporation, d/b/a TriStar Skyline Medical Center.

Richard D. Piliponis, Benjamin J. Miller, and Sarah L. Martin, Nashville, Tennessee, for
the appellee, Dennis Harold Ultsch.
 OPINION

I.

We begin by introducing the two laws at issue in this case: the common-law
framework for vicarious liability claims and the Health Care Liability Act.

A.

The common-law framework governing vicarious liability claims in Tennessee is
“well-established.” Abshure v. Methodist Healthcare-Memphis Hosps., 325 S.W.3d 98,
105–06 (Tenn. 2010). “[A] principal may be held vicariously liable for the negligent acts
of its agent when the acts are within the actual or apparent scope of the agent’s authority.”
Id. at 105. And in most situations, “a plaintiff may sue a principal based on its vicarious
liability for the tortious conduct of its agents without suing the agent.” Id. That general rule
applies “[e]ven where the agent’s conduct is the sole basis for the principal’s liability.” Id.
Thus, it is ordinarily the plaintiff’s choice whether “to sue the agent, the principal, or both.”
Id.

But this Court has identified four situations in which the general rule does not apply
and a plaintiff is precluded from exclusively pursuing a vicarious liability claim against the
principal. Id. at 106. The first is “when the agent has been exonerated by a finding of
non-liability.” Id. The second is “when the plaintiff has settled its claim against the agent.”
Id. The third is “when the agent is immune from suit, either by statute or by the common
law.” Id. And most relevant here, the fourth—known as the operation-of-law exception—
is “when the plaintiff’s claim against the agent is procedurally barred by operation of law
before the plaintiff asserts a vicarious liability claim against the principal.” Id.

This Court shaped the contours of the operation-of-law exception in Abshure. The
plaintiffs in that case brought a medical malpractice suit against a hospital and two
physicians, one of whom was an emergency room physician. Id. at 100. The plaintiffs
asserted vicarious liability claims against the hospital based on the conduct of the
emergency room physician. Id. After the plaintiffs voluntarily dismissed their claims
against the physicians, the hospital sought dismissal of the vicarious liability claims “on
the ground that the plaintiffs’ claims against its apparent agent, the emergency room
physician, were barred” by a Tennessee Rule of Civil Procedure and a statute of repose. Id.
at 100, 102.

Although this Court agreed that the plaintiffs’ claims against the physician had been
extinguished by operation of law, it nevertheless concluded that the operation-of-law
exception did not preclude the plaintiffs from pursuing their vicarious liability claims
against the hospital. Id. at 112. We clarified that this exception “is triggered only when a
plaintiff belatedly attempts to amend its complaint to add a new vicarious liability claim
against a principal after its claims against the agent have become barred by operation of
law.” Id. at 111. It does not apply, however, “where the plaintiff has initially filed a

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vicarious liability claim against [a] principal, and the plaintiff’s claims against the
principal’s agents are later extinguished by operation of law.” Id. To extend the exception
to the latter situation, the Court explained, “would be contrary to the traditional principle
that plaintiffs may elect to sue the principal, the agent, or both.” Id.

The Abshure Court gleaned these principles from its earlier decision in Creech v.
Addington, 281 S.W.3d 363 (Tenn. 2009), and the Court of Appeals’ decision in Huber v.
Marlow, No. E2007-01879-COA-R9-CV, 2008 WL 2199827 (Tenn. Ct. App. May 28,
2008). Abshure, 325 S.W.3d at 110–11. In both of those cases, the plaintiffs “initially sued
the principals but did not assert vicarious liability claims against them.” Id. at 110. Later,
after their claims against the agents were extinguished by operation of law—in Creech by
the doctrine of res judicata, 281 S.W.3d at 376–83, and in Huber by a statute of repose,
2008 WL 2199827, at *3–4—the plaintiffs attempted to amend their complaints to add
vicarious liability claims against the principals. Abshure, 325 S.W.3d at 111. The
operation-of-law exception applied in those cases because “the plaintiffs’ belated efforts to
amend their complaints against the principals to add a vicarious liability claim” implicated
the “traditional policy reason[]” for the exception—that “plaintiffs should not be permitted
to engage in an ‘encircling movement’ against the principal when they cannot pursue a
‘frontal attack’ on the agent.” Id. at 110–11 (first citing Graham v. Miller, 187 S.W.2d 622,
625–26 (Tenn. 1945); and then citing Raines v. Mercer, 55 S.W.2d 263, 264 (Tenn. 1932),
overruled on other grounds by Childress v. Childress, 569 S.W.2d 816, 819 (Tenn. 1978)).

B.

Abshure was a medical malpractice action, but the claims in that case arose before
the General Assembly began overhauling Tennessee’s medical malpractice laws in 2008.
They were therefore governed by the earlier, pre-amendment statutory scheme. 325 S.W.3d
at 101. The General Assembly’s 2008 amendments and others that followed—now known
collectively as the Health Care Liability Act—established a number of new procedural
requirements specific to health care liability claims. See Act of May 15, 2008, ch. 919,
2008 Tenn. Pub. Acts 1–4 (codified at Tenn. Code Ann. §§ 29-26-121, -122 (Supp. 2008)).1

Of particular importance here is the Act’s presuit notice requirement. As initially
enacted in 2008, that provision required persons asserting a potential claim for medical
malpractice to provide “written notice of the potential claim to each health care provider
against whom the potential claim is being made at least sixty (60) days before the filing of
a complaint.” Tenn. Code Ann. § 29-26-121(a)(1) (Supp. 2008) (emphasis added). The
General Assembly amended the provision in 2009 to require that presuit notice be given

1
In 2011, the General Assembly replaced all references to “medical malpractice” with “health care
liability.” See Ellithorpe v. Weismark, 479 S.W.3d 818, 826 (Tenn. 2015). The Act defines the term
“[h]ealth care liability action” broadly to include “any civil action . . . alleging that a health care provider
or providers have caused an injury related to the provision of, or failure to provide, health care services to
a person, regardless of the theory of liability on which the action is based.” Tenn. Code Ann. § 29-26-
101(a)(1) (2012 & Supp. 2017).
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only to “each health care provider that will be a named defendant.” Id. § 29-26-121(a)(1)
(Supp. 2009) (emphasis added).

At the same time it imposed the presuit notice requirement, the General Assembly
also provided that, when a plaintiff complies with the presuit notice requirement, “the
applicable statutes of limitations and repose shall be extended up to a period of ninety (90)
days” with respect to “all parties and potential parties.” Id. § 29-26-121(c) (Supp. 2008).
The General Assembly tweaked that provision in 2009 by expanding the extension from
90 to 120 days and providing that the extension applies only to the provider that received
presuit notice, not to all potential parties. Id. § 29-26-121(c) (Supp. 2009) (“When notice
is given to a provider as provided in this section, the applicable statutes of limitations and
repose shall be extended for a period of one hundred twenty (120) days from the date of
expiration of the statute of limitations and statute of repose applicable to that provider.”
(emphasis added)).

In the absence of an extension, the applicable statute of limitations in a health care
liability action is generally one year from the date the cause of action accrued. Id. § 29-26-
116(a)(1) (2012 & Supp. 2013); see also id. § 28-3-104(a)(1)(A) (2017). If “the alleged
injury is not discovered within” this one-year period, however, the limitations period is one
year “from the date of such discovery.” Id. § 29-26-116(a)(2). The statute of repose for
health care liability actions is generally three years, except “where there is fraudulent
concealment on the part of the defendant.” Id. § 29-26-116(a)(3).

II.

That brings us to the facts and procedural history of this case. Because we are
reviewing the trial court’s decision on a motion to dismiss, we accept as true the factual
allegations in the complaint. See Effler v. Purdue Pharma L.P., 614 S.W.3d 681, 687
(Tenn. 2020).

On January 7, 2018, Sheila Carol Warren was admitted to TriStar Skyline Medical
Center suffering from respiratory symptoms. Before her discharge several days later,
Warren informed Skyline that her oxygen tanks at home were not working properly. When
Warren’s ex-husband arrived at Skyline to transport Warren home, Skyline told him that
Warren would need an oxygen tank during transport and instructed him to retrieve one of
her tanks from home. Warren’s ex-husband asked Skyline to arrange for an oxygen tank
instead, but Skyline declined. Warren’s ex-husband went home to pick up one of Warren’s
tanks and returned to Skyline. Skyline did not determine whether the tank was working
before discharging Warren or otherwise ensure that her oxygen level would be monitored
during transport. Warren was discharged on January 12, 2018, and died on her way home
from Skyline after going into “acute hypoxic respiratory failure.”

On December 21, 2018, Warren’s next of kin, Dennis Harold Ultsch, gave Skyline
presuit notice of a potential health care liability claim as required by Tennessee Code

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Annotated section 29-26-121(a)(1) (2012 & Supp. 2017). Ultsch did not provide presuit
notice to any of Skyline’s employees or agents.

The one-year statute of limitations applicable to Skyline began to run on January
12, 2018, when Warren died following her release from Skyline, and ended on January 12,
2019. See Tenn. Code. Ann. § 29-26-116(a)(1). Because Ultsch gave Skyline presuit
notice, Tennessee Code Annotated section 29-26-121(c) (2012 & Supp. 2017) extended
the statute of limitations applicable to claims against Skyline by 120 days to May 12, 2019.

Ultsch brought this action against Skyline in the Davidson County Circuit Court on
May 6, 2019. His complaint alleged that Skyline––either directly or vicariously through its
employees and agents––negligently caused Warren’s death. Ultsch sued only Skyline, not
any of its employees or agents.

In July 2019, Skyline moved to dismiss Ultsch’s vicarious liability claims under
Tennessee Rule of Civil Procedure 12.02(6). Skyline argued that the vicarious liability
claims were barred under the common law. More precisely, Skyline contended that the
operation-of-law exception applied because, at the time Ultsch brought his vicarious
liability claims against Skyline, any claims against Skyline’s agents had been extinguished
by operation of law—i.e., the expiration of the one-year statute of limitations applicable to
those claims.

Ultsch opposed the motion on several grounds. First, he disputed whether the statute
of limitations applicable to any claims against Skyline’s agents had expired, arguing that
the statute of limitations did not begin to run until he discovered the identity of those agents
from medical records Skyline provided in June 2018 and March 2019. Second, Ultsch
argued that the operation-of-law exception was inapplicable. On that score, he contended
that this case is distinguishable from Creech and Huber because it did not involve an
attempt to belatedly amend a complaint that did not initially include vicarious liability
claims. He also pointed out that Abshure and Huber involved a statute of repose rather than
a statute of limitations. Third, Ultsch argued that, even if the operation-of-law exception
would otherwise bar his vicarious liability claims against Skyline, application of the
exception would conflict with the Health Care Liability Act.

The trial court granted Skyline’s motion to dismiss. As an initial matter, the trial
court held that the statute of limitations applicable to any claims against Skyline’s agents
expired on January 12, 2019—one year after Warren’s death. The court then concluded
that, because any claims against Skyline’s agents were barred by the statute of limitations
at the time Ultsch brought vicarious liability claims against Skyline on May 6, 2019, the
vicarious liability claims fell “squarely within” the operation-of-law exception and thus
were subject to dismissal.

The Court of Appeals granted Ultsch’s interlocutory appeal and reversed. Ultsch v.
HTI Mem’l Hosp. Corp., No. M2020-00341-COA-R9-CV, 2021 WL 1235683, at *1 (Tenn.
Ct. App. Apr. 1, 2021), perm. app. granted, (Tenn. Sept. 22, 2021). On appeal, the parties

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did not dispute the trial court’s conclusion that the statute of limitations applicable to claims
against Skyline’s agents had expired by the time Ultsch sued Skyline. Id. at *2. After
discussing the common-law framework that governs vicarious liability claims, the Court
of Appeals explained that, if it were to apply the operation-of-law exception to Ultsch’s
“vicarious liability claims against Skyline, . . . the result would likely be to bar [his]
claims” since the “one-year statute of limitations had run on any direct claims against”
Skyline’s agents or employees. Id. at *6.2 The court determined that “[a]pplication of the
common law principle would conflict with the outcome prescribed by” the Health Care
Liability Act by “effectively shorten[ing] the time for pre-suit resolution of claims for
vicarious liability cases brought solely against the principal” or forcing the plaintiff to give
presuit notice to agents or employees the plaintiff did not intend to sue. Id. The Court of
Appeals held that, given this conflict between the Act and the common law, the provisions
of the Act prevail. Id. at *7.

We granted review in this case to consider whether the trial court erred by
dismissing the plaintiff’s vicarious liability claims. We simultaneously granted review in
Gardner v. Saint Thomas Midtown Hospital, No. M2019-02237-COA-R3-CV, 2021 WL
1235226 (Tenn. Ct. App. Apr. 1, 2021), perm. app. granted, (Tenn. Sept. 22, 2021), to
consider a similar question.

III.

A.

The broad question before us is whether the trial court correctly dismissed Ultsch’s
vicarious liability claims against Skyline. But that broad question includes a number of
subsidiary issues. In arguing that dismissal was improper, Ultsch defends the Court of
Appeals’ conclusion that application of the operation-of-law exception conflicts with the
Act and that the Act must therefore prevail. Yet he also contends that the common law does
not bar his claims in the first place. Ultsch maintains that the operation-of-law exception
discussed in Abshure “is in reality quite narrow.” He argues that this case is similar to
Abshure, which declined to apply the operation-of-law exception, because it “is not a ‘late
amendment’ case in which the original complaint did not allege vicarious liability.” And
he again points out that this case involves a statute of limitations rather than a statute of
repose.

2
In a footnote, the Court of Appeals noted that a statute of limitations is procedural and
“extinguish[es] only the remedy” for a cause of action, while a statute of repose is substantive and
“extinguish[es] both the right and the remedy.” Ultsch, 2021 WL 1235683, at *6 n.3 (quoting Jones v.
Methodist Healthcare, 83 S.W.3d 739, 743 (Tenn. Ct. App. 2001)). The court observed that, based on that
distinction, “it could be argued that” the operation-of-law exception “does not apply where a direct claim
against the agent is barred by the statute of limitations.” Id. The Court of Appeals, however, previously has
characterized the expiration of a statute of limitations as a procedural bar, see Huber, 2008 WL 2199827,
at *3, and so too have federal district courts in Tennessee, see JRS Partners, GP v. Leech Tishman Fuscaldo
& Lampl, LLC, No. 3:19-cv-00469, 2020 WL 5877131, at *15–16 (M.D. Tenn. Oct. 2, 2020); Smith v.
Holston Med. Grp., PC, No. 2:12-CV-72, 2013 WL 11478937, at *3–4 (E.D. Tenn. June 20, 2013).
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 Whether the operation-of-law exception applies in the circumstances of this case is
a difficult question. This case is not on all fours with any of this Court’s or the Court of
Appeals’ precedents considering the operation-of-law exception. Unlike the plaintiffs in
Creech and Huber, cases in which the exception was applicable, Ultsch did not seek to
amend his complaint to belatedly add vicarious liability claims he failed to include initially.
Rather, he included vicarious liability claims in his initial complaint. But this case is also
distinguishable from Abshure, which held the exception inapplicable. Whereas the
plaintiffs in Abshure brought their vicarious liability claims before the claims against the
agents were barred, Ultsch filed suit after the statute of limitations for any claims against
Skyline’s agents had expired.

We need not resolve that difficult question to decide this appeal. That is because
application of the operation-of-law exception to bar Ultsch’s vicarious liability claims
would conflict with the Act. And in the event of a conflict, the Act must prevail. I therefore
take no position on whether the operation-of-law exception in fact bars a plaintiff’s
vicarious liability claims in these circumstances, but instead assume for purposes of this
opinion that it would.3

In her separate opinion, Justice Lee asserts that this assumption “sidesteps a
foundational part of the analysis” and renders my discussion regarding the conflict between
the common-law rule and the Act “merely an academic exercise.” She is mistaken. When,
as here, a case includes multiple potentially dispositive issues that do not bear on
jurisdiction, a court has discretion to choose which of those issues to decide first.4 For
example, when resolving claims of qualified immunity in cases brought under 42 U.S.C.
§ 1983, courts may skip directly to the question whether the right at issue was clearly
established without deciding whether there was a violation of that right in the first place.
See King v. Betts, 354 S.W.3d 691, 706 (Tenn. 2011) (recognizing that the United States
Supreme Court adopted this more flexible approach in Pearson v. Callahan, 555 U.S. 223,
242 (2009)). As another example, the United States Supreme Court recently decided a
copyright case on the basis of the fair-use exception without first deciding whether the
material at issue was copyrightable. See Google LLC v. Oracle Am., Inc., 141 S. Ct. 1183,
1197 (2021) (“We shall assume, but purely for argument’s sake, that the entire [material]
falls within the definition of that which can be copyrighted.”). Although the dissent in that

3
In his separate opinion, Justice Bivins concludes that the operation-of-law exception applies in
the factual circumstances of this case. That part of his opinion is joined by Chief Justice Page and Justice
Lee and constitutes the opinion of the Court on that issue. A different majority of the Court—Justice Lee,
Justice Kirby, and Justice Campbell—concludes in Parts III(B)–(E) of Justice Campbell’s opinion that
application of the operation-of-law exception would conflict with and therefore is abrogated by the Health
Care Liability Act. Parts I(B), II, and III(B)–(E) of Justice Campbell’s opinion constitute the opinion of the
Court.
4
If there is a question concerning whether the court has authority to decide the case at all, then that
question necessarily must be resolved first. Cf. Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94–95
(1998) (holding that federal courts may not assume jurisdiction for purposes of deciding the merits because
such an approach would carry “the courts beyond the bounds of authorized judicial action and thus offend[]
fundamental principles of separation of powers”).
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case criticized the majority for making that assumption, it did so only because
copyrightability was the “principal question that [the Court was] asked to answer” and
because the assumption “distort[ed]” the majority’s fair-use analysis. See id. at 1211˗12,
1214 (Thomas, J., dissenting).

Here, the principal question we are asked to answer is whether the Act abrogates the
operation-of-law exception in the circumstances of this case. I assume that the operation-
of-law exception would otherwise apply here in order to resolve that question, and nothing
about this assumption distorts my analysis of that issue.

B.

We review a trial court’s decision on a motion to dismiss de novo, without any
presumption of correctness. Ellithorpe, 479 S.W.3d at 824. We accept the factual
allegations in the complaint as true. Effler, 614 S.W.3d at 687. A motion to dismiss should
be granted “only when it appears that the plaintiff can prove no set of facts in support of
the claim that would entitle the plaintiff to relief.” Willis v. Tenn. Dep’t of Corr., 113
S.W.3d 706, 710 (Tenn. 2003).

Because this case involves the interplay between the common law and the Health
Care Liability Act, it is worth reiterating the principles that guide our consideration of that
issue. “Common-law principles and rules govern unless they have been changed by
statute.” Hodge v. Craig, 382 S.W.3d 325, 338 (Tenn. 2012). “[T]he General Assembly,
subject only to constitutional limitations, has plenary power to alter the common law.” Id.
But we “presume that the legislature did not intend to change the common law,” Kradel v.
Piper Indus., Inc., 60 S.W.3d 744, 751 (Tenn. 2001), and we will find that a statute has
abrogated the common law only if it does so expressly or by necessary implication, see In
re Deskins’ Ests., 381 S.W.2d 921, 922 (Tenn. 1964). Put another way, “the common law
is not displaced by a statute, except to the extent necessarily required by the statute itself.”
Kradel, 60 S.W.3d at 751. “[W]hen there is a conflict between the common law and a
statute,” however, it is well settled that “the provision[s] of the statute must prevail.” Lavin
v. Jordon, 16 S.W.3d 362, 368 (Tenn. 2000) (alterations in original) (quoting Graves, 148
S.W. at 242). This deference to the General Assembly is “constitutionally based . . . [and]
rests on fundamental differences between the judicial and legislative process.” Hodge, 382
S.W.3d at 338. When “the General Assembly has enacted statutes that clearly and
definitively set boundaries on rights, obligations, or procedures, . . . ‘it should be left to the
legislature to change those boundaries . . . and to define new ones.’” Id. (quoting Taylor v.
Beard, 104 S.W.3d 507, 511 (Tenn. 2003)).

C.

No one argues that the Act expressly abrogates the operation-of-law exception, so
the only question before us is whether the Act necessarily implies or requires that the
exception must be abrogated in the unique circumstances of this case. We hold that it does,

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because applying the exception here would directly conflict with and essentially nullify the
provision of the Act that extends the statute of limitations when presuit notice is given.

It is undisputed that Ultsch gave timely presuit notice to Skyline as required by the
Act and that, once notice was provided, the statute of limitations applicable to claims
against Skyline was automatically extended by 120 days. See Tenn. Code Ann. § 29-26-
121(c) (providing that the “applicable statutes of limitations and repose shall be extended”
when “notice is given to a provider” (emphasis added)). It is also undisputed that Ultsch
brought his vicarious liability claims against Skyline within that extended statute of
limitations. In short, Ultsch did everything the Act required to bring a timely claim against
Skyline.

Applying the operation-of-law exception to bar Ultsch’s vicarious liability claims
in these circumstances would directly conflict with the Act and frustrate its detailed
procedural requirements. This conflict is best illustrated by identifying what Ultsch would
have had to do to avoid the exception. One option would have been to file his vicarious
liability claims against Skyline before January 12, 2019—when the one-year statute of
limitations applicable to any claims against Skyline’s agents expired. But that option would
effectively negate the Act’s automatic 120-day extension of the statute of limitations as to
Skyline by forcing him to sue within the statute of limitations applicable to the agents.
Another option would have been to provide presuit notice to Skyline’s agents, whom
Ultsch did not intend to sue, so that the statute of limitations applicable to those claims
would be extended too. But that option cannot be squared with the Act’s presuit notice
provision, which requires only that notice be given “to each health care provider that will
be a named defendant.” Id. § 29-26-121(a)(1) (emphasis added). A final option would have
been to provide presuit notice to Skyline and its agents, and sue all of them. However, this
last option is contrary to the general common-law rule that a plaintiff may choose to sue a
principal, an agent, or both.

The bottom line is that, in the unique circumstances presented in this case, there is
no way to simultaneously apply the operation-of-law exception and give full effect to the
Act’s provisions. The structure and operation of the Act thus necessarily imply that the
operation-of-law exception must be abrogated. Because a conflict exists, we must give
precedence to the legislature’s policy choices reflected in the Act. After all, we are not
permitted to “alter or amend statutes [or] substitute our own policy judgments for those of
the General Assembly.” Armbrister v. Armbrister, 414 S.W.3d 685, 704 (Tenn. 2013)
(quoting Britt v. Dyer’s Emp. Agency, Inc., 396 S.W.3d 519, 523 (Tenn. 2013)).

This holding is a narrow one. It is not intended to abrogate the common-law
framework for vicarious liability claims outside the health care liability context or in
situations where its application to health care liability claims would not conflict with the
Act. We hold only that, if application of the operation-of-law exception would bar a
vicarious liability claim that is timely filed within the Act’s extended statute of limitations
solely because the statute of limitations had expired for any claims against the principal’s
agents, the exception must give way to the Act.

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 D.

Skyline raises several arguments in defense of the trial court’s decision, but they are
unavailing.

Skyline first accuses the Court of Appeals of erroneously holding that the 120-day
extension of the statute of limitations in section 29-26-121(c) applies not only to the health
care providers who received presuit notice, but also to each and every potential agent and
employee of those providers. But that argument reflects a misreading of the Court of
Appeals’ decision. The Court of Appeals explained that “pre-suit notice was provided to
Skyline, thereby extending by 120 days the statute of limitations applicable to it.” Ultsch,
2021 WL 1235683, at *3 (emphasis added). The Court of Appeals did not hold that the
statute of limitations was extended as to claims against any other person or entity. Nor
could it. The Act is clear: it provides that “[w]hen notice is given to a provider . . . the
applicable statutes of limitations . . . shall be extended for a period of one hundred twenty
(120) days from the date of expiration of the statute of limitations . . . applicable to that
provider.” Tenn. Code Ann. § 29-26-121(c) (emphasis added).

Skyline next points out that the General Assembly had already enacted the
provisions requiring presuit notice and extending the statute of limitations by the time this
Court decided Abshure. Skyline contends that there is therefore “no merit to the argument
that the [Act’s] pre-suit notice requirements abrogate the applicability of” the operation-
of-law exception. True, the provisions of the Act on which we rely had been enacted by
the time the Court decided Abshure. But they did not apply to the claims at issue in Abshure
because those claims accrued and were filed years earlier—before those provisions were
enacted. See Abshure, 325 S.W.3d at 100–01. Accordingly, we had no occasion in Abshure
to consider the interaction of the common law with the Act.

Finally, Skyline contends that the Court of Appeals’ decision is inconsistent with
Taylor v. Miriam’s Promise, No. M2017-01908-COA-R3-CV, 2019 WL 410700 (Tenn.
Ct. App. Jan. 31, 2019), perm. app. denied, (Tenn. June 20, 2019) (not for citation). It is
hard to see how that argument—even if correct—would help Skyline. Taylor was
designated “not for citation.” Although the case may be cited to demonstrate a split of
authority, see Tenn. Sup. Ct. R. 4(E)(2), it has no precedential value, see id. 4(E)(1) (“If an
application for permission to appeal is hereafter denied by this Court with a ‘Not for
Citation’ designation, the opinion of the intermediate appellate court has no precedential
value.”). And we of course are not bound “by a conclusion reached by the Court of
Appeals” in any event. Crosslin v. Alsup, 594 S.W.2d 379, 380 (Tenn. 1980).

This case is also distinguishable from Taylor. The plaintiff in Taylor sued both the
principal and the agent but did not comply with the Act’s presuit notice requirement as to
the agent. See 2019 WL 410700, at *3–4. More importantly, the Court of Appeals did not
identify or discuss the potential conflict between application of the operation-of-law

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exception and the provision of the Act extending the statute of limitations when presuit
notice is given. Its analysis is therefore unpersuasive.

E.

The dissent maintains that we must apply the operation-of-law exception absent a
conclusion that it “cannot coexist with the provisions of the [Act].” In the dissent’s view,
the operation-of-law exception can coexist with the Act—and therefore is not abrogated by
necessary implication—because a plaintiff can avoid dismissal of its claims against the
principal by “sending pre-suit notice to the agent(s) as well as the principal” or “fil[ing]
suit within the one-year statute of limitations.”

We have never adopted the “cannot coexist” standard on which the dissent relies.
To be sure, abrogation by necessary implication is a high bar: a “necessary implication” is
one that is “so strong in its probability that anything to the contrary would be
unreasonable.” Necessary Implication, Black’s Law Dictionary (11th ed. 2019). But that
standard is met here because allowing the Act and the operation-of-law exception to
coexist—that is, depriving a plaintiff who wishes to sue only the principal of the Act’s
mandatory extension of the statute of limitations or forcing that plaintiff to give presuit
notice to parties that will not be named defendants—would be unreasonable.

* * *

The Health Care Liability Act’s presuit notice provisions necessarily imply an intent
to abrogate the operation-of-law exception in the unique circumstances of this case.
Because the operation-of-law exception does not bar Ultsch’s claims, the Court of Appeals
correctly reversed the trial court’s decision to grant Skyline’s motion to dismiss. We
therefore affirm the decision of the Court of Appeals and remand to the trial court for
further proceedings consistent with this opinion. The costs of this appeal are taxed to
Skyline, for which execution shall issue if necessary.

_____________________________
SARAH K. CAMPBELL, JUSTICE

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