My newest column it Tennessee Bar Journal: Traffic Citations: Their Impact on Statutes of Limitations in Personal Injury and Wrongful Death Cases.”
Where plaintiff’s personal injury claim was based on a Tennessee car accident for which defendant was given a traffic citation for failure to exercise due care under Tenn. Code Ann. § 55-8-136, which is a Class C misdemeanor, the statute of limitations for plaintiff’s action was extended to two years pursuant to Tenn. Code Ann. § 28-3-104(a)(2).
In Younger v. Okbahhanes, No. E2020-00429-COA-R10-CV (Tenn. Ct. App. Jan. 28, 2021), plaintiff was injured in a car accident with defendant in September 2017. A state trooper issued defendant a traffic citation listing three violations, including “failure to exercise due care, pursuant to Tennessee Code Annotated § 55-8-136.” Defendant eventually paid a fine for this citation. In April 2019, which was more than one year after the accident, plaintiff filed this personal injury action, arguing that instead of being subject to the standard one-year statute of limitations for personal injury claims, the statute of limitations for this case was extended to two years by virtue of Tenn. Code Ann. § 28-3-104(a)(2). Defendant filed a motion for summary judgment based on the statute of limitations issue, but the trial court ruled in favor of plaintiff, and the Court of Appeals affirmed.
Where plaintiff knew her husband was killed in a car accident with a firefighter but did not know all the details regarding how the accident occurred, the one-year statute of limitations began to run on the day of the crash and her GTLA suit that was filed more than one year after the accident was untimely.
In Durham v. Estate of Losleben, No. W2019-01623-COA-R3-CV (Tenn. Ct. App. Dec. 8, 2020), the plaintiff’s husband was killed when his vehicle collided with one being driven by a firefighter. One year and 21 days after the accident, the plaintiff filed this case under Tennessee’s Governmental Tort Liability Act against the county that employed the firefighter, the fire department, and the estate of the firefighter, who was also killed in the accident.
Defendants moved to dismiss based on the statute of limitations. The trial court granted the motion, finding that the GTLA claim against the governmental entities was time-barred and that the estate was immune under the GTLA. The Court of Appeals affirmed this ruling.
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.
The Tennessee Supreme Court has extended the deadlines for filing suit (both statutes of limitations and statutes of repose) because of the coronavirus and Covid-19.
By Court Order filed March 25, 2020, the Court said this:
Statutes of limitations and statutes of repose that would otherwise expire during the period from Friday, March 13, 2020, through Tuesday, May 5, 2020, are hereby extended through
Occasionally, a plaintiff does not learn until after more than one-year after an event that the person who caused plaintiff’s injuries and losses was working in the course and scope of employment at the time of the incident. How can a plaintiff add the employer as a party defendant and avoid a statute of limitations defense?
First, persuade the lawyer for the individual defendant to allege the fault of the nonparty employer. The decision in Browder v. Morris, 975 S.W.2d 308 (Tenn. 1998) held that Tenn.Code Ann. Sec. 20-1-119 applied to such an allegation and thus a plaintiff could take advantage of the statute’s 90-day window to add the employer as a party defendant and avoid a statute of limitations defense.
Second, move to amend the complaint to add the employer to the case and argue that suit was timely filed because of application of the discovery rule. The rule does not just apply to health care liability actions – -the Tennessee Supreme Court extended the discovery rule to “all tort actions predicated on negligence, strict liability, or misrepresentation.” Doe v. Coffee County Bd. of Educ., 852 S.W.2d 899, 904 (Tenn. Ct. App. 1992) (citation omitted).
Where plaintiffs knew that a Tennessee judgment had to be renewed when it was ten years old, had not spoken with an attorney at the firm who previously represented them, and had not received any bills or communications about a renewal of the judgment, plaintiffs’ legal malpractice claim filed three years after the judgments needed to be renewed was time-barred.
In Rozen v. Wolff Ardis, P.C., No. W2019-00396-COA-R3-CV (Tenn. Ct. App. Dec. 17, 2019), plaintiffs had been represented by defendant law firm in a 2003 case. In that case, plaintiffs were awarded judgments against two defendants who stole jewelry from plaintiffs’ business, but because those defendants were sent to prison, the judgments were not collected on at the time. When one of the two defendants filed for bankruptcy in 2006, defendant law firm represented plaintiffs to ensure that the judgment was not discharged. After that representation in 2006, plaintiffs “received a letter from Wolff Ardis stating that ‘this matter is completed’ and requesting that [plaintiffs] pay for the legal services performed for them.”
In order to bring a direct claim against a plaintiff’s uninsured motorist insurance carrier, the plaintiff must have filed his initial complaint against the uninsured motorist (or “John Doe” if unknown) within the one-year statute of limitations.
In Fults v. MetLife Auto & Home Insurance Agency, Inc., No. M2018-00647-COA-R3-CV (Tenn. Ct. App. March 7, 2019), plaintiff was injured in a hit-and-run car accident on November 16, 2015, and the other driver was never identified. Plaintiff filed suit, naming his uninsured motorist carrier as defendant, on July 14, 2017. Defendant moved for dismissal, arguing that plaintiff’s claim was barred “on the ground that the complaint did not name or contain allegations against a “John Doe” driver, that no summons had been issued against “John Doe”…, and that the statute of limitations…would prevent John Doe from being named as a defendant.” Plaintiff moved to amend the complaint and add John Doe, but the trial court denied the motion to amend and granted the motion to dismiss. The Court of Appeals affirmed.
Where plaintiff offered no evidence to refute defendant attorney’s testimony that he told plaintiff about the issues with a title before the closing of a real property purchase, summary judgment on the legal malpractice claim was affirmed based on the statute of limitations.
In Dent Road General Partnership v. Synovus Bank, No. W2017-01550-COA-R3-CV (Tenn. Ct. App. Nov. 26, 2018), plaintiff was a partnership who had worked with defendant attorney on the purchase of three tracts of real property in 2004. Although the contract stated that the parcels would be conveyed by warranty deeds, at closing a quitclaim deed was given for one. Later, in 2011, plaintiff partnership attempted to sell the property, at which time a title search revealed “four pending lawsuits seeking to set aside a fraudulent conveyance [of one parcel]…, several judgment liens, and liens lis pendens.” Within one year of this 2011 title search, plaintiff brought suit against several entities, including a claim for legal malpractice against defendant attorney in connection with the 2004 purchase.
The trial court granted summary judgment to defendant attorney, finding that “the injury for purposes of the discovery rule occurred on the date of closing, Marcy 31, 2004, and that [plaintiffs] were alerted to the injury when they received the quitclaim deed at closing.” The Court of Appeals affirmed this ruling.
Where a plaintiff knew that her father had escaped from a hospital where his family had requested a mental evaluation and then killed his wife and himself, the plaintiff had constructive knowledge of her claim against the treating doctor and hospital as of the day she learned about the murder-suicide.
In Herpst v. Parkridge Medical Center, No. E2017-00419-COA-R3-CV (Tenn. Ct. App. Aug. 23, 2018), plaintiff and her family members took her father to defendant hospital because he was experiencing “paranoia and delusional episodes” and had discussed committing suicide. They chose this specific hospital because it was “the only hospital in Chattanooga that has a dedicated and secured floor for mental evaluations.” Plaintiff and her family requested a mental evaluation of her father and told his treating physician that he was a danger to himself.
On the day after the father’s admission, plaintiff inquired about when the evaluation would be done and did not get an answer. The next day, he had become agitated and plaintiff again got no answers from the nurses, who allegedly stated: “we don’t know, we don’t care, we’re tired of fooling with him…he’s crazy.” Three days after his admission, the father pulled his I.V. out and left the hospital. Sometime in the following two days, he killed his wife and himself, and plaintiff was notified of her parents’ death on July 3, 2013.