Day on Torts - New Post: Case against deceased defendant time-barred.

Where the other driver in a car accident case died before suit was filed and the plaintiff failed to “timely file his tort action against the personal representative within the applicable statute of limitations,” summary judgment for the personal representative was affirmed.

In Mott v. Luethke, No. E2020-00317-COA-R3-CV (Tenn. Ct. App. Mar. 16, 2021), the plaintiff was in a car accident with another driver on March 22, 2016. Plaintiff filed a civil action in general sessions court against the driver on March 3, 2017, but the driver had died on December 7, 2016. After the plaintiff learned of the driver’s death, he filed a petition on August 30, 2017, to have the defendant appointed as the personal representative of the estate, and the probate division of the chancery court entered an order appointing the defendant on October 31, 2017. Plaintiff filed a “re-issued” civil summons in the sessions court on January 31, 2018, which was served on the defendant as the personal representative. The matter was transferred to the trial court by agreement of the parties, and then in February 2019, the defendant filed a motion for summary judgment based on the statute of limitations. The trial court agreed that the case was time-barred and thus granted summary judgment, which was affirmed on appeal.

On appeal, the plaintiff first argued that the civil summons naming defendant should have related back to the date of his first filing under Tennessee Rule of Civil Procedure 15.03. The Court of Appeals ruled, though, that pursuant to Rule 1, the Tennessee Rules of Civil Procedure are not applicable in general sessions court except in certain circumstances, which is where the plaintiff filed his case. Plaintiff asserted that the rules should apply here because the case was eventually transferred to the circuit court, but the Court of Appeals pointed out that the exception to Rule 1 that plaintiff was attempting to use only applies “after…transfer of a general sessions civil lawsuit to circuit court,” and plaintiff here “filed both summonses in general sessions court before the case was transferred to the trial court.” Because of Rule 1, the second civil warrant, therefore, did not relate back to the filing of the first.

The Court next analyzed the trial court’s ruling that the statute of limitations barred the plaintiff’s claim. Tennessee’s survival statute states that a cause of action against a tortfeasor who dies before suit is brought survives against the tortfeasor’s personal representative. (Tenn. Code Ann. § 20-5-103). Pursuant to Tenn. Code Ann. § 28-1-110, the statute of limitations in such an action is tolled “between the death of the alleged tortfeasor and the appointment of the estate’s representative for a period not to exceed six months.” Applying these statutes to the instant case, the Court explained:

[I]t is undisputed that the automobile accident in question occurred on March 22, 2016… Decedent’s death occurred on December 7, 2016, three months and fourteen days before the expiration of the one-year statute of limitations, had Decedent survived. Upon Decedent’s death, the statute of limitations was tolled for up to six months from Decedent’s death until either (1) a personal representative was appointed or (2) six months passed from the date of Decedent’s death, i.e., June 7, 2017. Because no personal representative was appointed during the six-month period following Decedent’s death, on June 7, 2017, the statute of limitations began to run again. On June 7, 2017, three months and fourteen days remained within the original limitation period for [plaintiff] to prosecute his cause of action in compliance with the survival statute prior to the expiration of the statute of limitations. Accordingly, on September 20, 2017, the applicable limitations period expired before [plaintiff] filed a summons naming [defendant] as the party defendant on January 31, 2018.

(internal citations omitted). While the plaintiff had a personal representative named within the statute of limitations time period, he “did not take further action by substituting Administrator as the proper party before the date of expiration for the statute of limitations[.]” The Court ruled that plaintiff’s “failure to strictly follow the final mandatory step of the survival statute” was “fatal” to his case.

Notably, the plaintiff asserted that because he had filed the petition to have the defendant named personal representative, the defendant “was aware of [plaintiff’s] intention to name him as the proper party defendant and that Administrator’s purported awareness was sufficient.” The Court quickly rejected this argument, pointing out that previous cases have explained that the survival statute must be “strictly followed.” (citation omitted).

Finally, the plaintiff argued that the defendant should be equitably estopped from pursuing a statute of limitations defense. To support this argument, the plaintiff attempted to use portions of a letter from defense counsel, but the Court ruled that this letter could not be considered “because it was not authenticated by affidavit.” The Court ultimately agreed with the trial court that the plaintiff had not met his burden of showing that the defendant should be equitably estopped, as he did not cite any admissible evidence and could not show that he had “act[ed] diligently to timely file his cause of action[.]” Summary judgment for the defendant was therefore affirmed.

This case shows the importance of closely following the survival statute in cases where the tortfeasor died prior to the filing of the suit. Failure to meet each requirement can result in the dismissal of your case before the merits are ever even considered.

NOTE: This opinion was released 3.5 months after oral arguments in this case.