Day on Torts - New Post: Suing a Deceased Defendant in Tennessee

Where a plaintiff filed a personal injury action against the personal representative of the estate of the deceased tortfeasor, but the estate had already been closed and the statute of limitations had run by the time the plaintiff sought to extend the time to file correctly, dismissal based on untimeliness was affirmed.

In Algee v. Craig, No. W2019-00587-COA-R3-CV (Tenn. Ct. App. Mar. 31. 2020), plaintiff was injured in a car accident allegedly caused by Nancy Craig on September 25, 2017. Nancy Craig died the following January, and her estate was opened with Defendant David Craig as her personal representative in February 2018. The estate was closed on July 13, 2018.

On September 24, 2018, plaintiff filed this action against David Craig in his capacity as personal representative. Defendant moved to dismiss, asserting that “the suit was filed against an improper party because he had been released from service when the estate was closed.” Defendant further argued that because the suit was filed against an improper party, it did not toll the statute of limitations, which expired on October 29. Plaintiff admitted that the limitations period had run, but he “moved to enlarge the time for filing service of process anew after he reopened the estate pursuant to Rule 6.02 of the Tennessee Rules of Civil Procedure.” Plaintiff claimed excusable neglect applied here because the probate court clerk had not given him a copy of the order closing the estate, despite his request for the all pleadings filed.  The trial court found that there was excusable neglect, “but ultimately concluded that relief was not available through Rule 6.02 to extend the statute of limitations in this personal injury action,” and it dismissed the case based on untimeliness. The Court of Appeals affirmed.

“A suit to recover personal injury damages from a decedent is governed by Tennessee Code Annotated section 20-5-103[.]” The statute provides that the “cause of action survives only against the personal representative of the tort-feasor,” and “[s]ince the statute defines the exclusive remedy, and the steps to be taken to secure it, those steps must be strictly followed.” (internal citation omitted).

Here, because the initial complaint was filed against a then non-existent personal representative, the Court upheld dismissal of the case. The Court looked to a similar case where a plaintiff filed suit against a defendant that was already deceased, but then sought to amend and substitute the personal representative after the statute of limitations had passed. The Court explained:

The trial court denied the request and dismissed, holding that an amended complaint adding the personal representative as the defendant would not relate back to the original filing against the decedent. We affirmed and explained that if a complaint does not commence an action within the meaning of Rule 3 it does not commence an action that a later amendment can relate back to within the meaning of Rule 15.03. We concluded that the failure to strictly follow the requirement of Section 20-5-103 by naming the personal representative was fatal to the survivability of the action. The same holds true here.

(internal citations and quotation omitted). The Court of Appeals thus affirmed dismissal of this case based on the statute of limitations, “holding that Rule 6.02 may not operate to extend the statute of limitations under the circumstances presented here.”

When a defendant dies between the wrongful action and the filing of a lawsuit, the statutory requirements to maintain the action must be strictly followed. This case shows that failure to do so, even when the mistake seems excusable, can result in your case not being heard on its merits.

NOTE: This opinion was released two and a half months after oral argument.