Day on Torts
Grandstaff v. Bowman, No. E2007-00135-COA-R3-CV, (Tenn. Ct. App. May 29, 2008), is a case that reminds careful readers of the perils of filing a personal injury case on the eve of the statute and then simply sitting on it. As a result of this conduct, the plaintiff lost the opportunity to add a corporate defendant who employed the individual defendant at the time of the car wreck.
Plaintiff attempted to use Sec. 20-1-119 to get around the problem; Judge Susano correctly ruled the statute inapplicable.
Plaintiff then tried to say that he did not discover the existence of the corporate defendant until a date within one year of the date of filing. Not a bad argument – unless one considers these facts:
"The record before us, viewed in the light most favorable to the plaintiffs, demonstrates a lack of due diligence by the plaintiffs in investigating their case during the 28 months between the car accident with Bowman and the discovery that Bowman was allegedly acting within the scope and course of his employment with Hardee’s. The plaintiffs’ affidavits indicate that Bowman’s employment status was not immediately apparent from the circumstances of the accident, and that Bowman did not volunteer any information about this issue while conversing with the plaintiffs after the crash. However, there is no indication that the plaintiffs ever asked him whether he was “on the job,” either in the accident’s immediate aftermath or at any subsequent time. In fact, the facts in this record show no effort by the plaintiffs to ask Bowman or his counsel any pertinent questions during the nearly 2 1/2 years between the accident and the receipt of the letter implicating Hardee’s."
OMG.
Lessons: 1. Do reasonable pre-suit discovery to determine, inter alia, whether the individual defendant was working at the time of the incident.. 2. Serve written discovery with the complaint. 3. Include interrogatories designed to help you learn whether the individual defendant was on the business of another at the time of the incident. 4. Insist on timely answers to those interrogatories. 5. Clear up ambiguities in a deposition if necessary. 6. Promptly add the employer defendant if necessary.
Take these steps and you will sleep soundly.
Read the opinion here.