Articles Posted in Limitation of Actions

Tennessee court holds that publicly available information triggered the duty to inquire and claim being barred by the statute of limitations.

The Facts

In First Community Bank, N.A. v. First Tennessee Bank, N.A., No. E2022-00954-COA-R3-CV (Tenn. Ct. App. Feb. 13, 2024), plaintiff bank purchased “approximately $135 million in asset-backed securities in the form of 11 notes issued by several collateralized debt obligations and a collateralized mortgage obligation,” including some purchased from defendant. All purchases were completed by 2007. By May 2008, plaintiff knew that the securities had lost significant value. The investment experienced continued losses, defaults, and downgrades in 2008 and 2009. Plaintiff eventually sold the securities, incurring an approximately $100 million loss.

Where there was a question of fact regarding when plaintiff was put on notice of his potential HCLA claim, and plaintiff provided an expert affidavit in support of his claims, summary judgment based on the statute of limitations and a lack of proof on causation and damages was reversed.

In Vilas v. Love, No. W2022-01071-COA-R3-CV (Tenn. Ct. App. Oct. 26, 2023), plaintiff had his appendix removed by defendant surgeon. At a follow up appointment on March 27, 2017, plaintiff was given a pathology report that stated that “no intact vermiform appendix is identified.” There was a disagreement between plaintiff and defendant regarding what defendant told plaintiff at the follow up appointment. Two weeks after the follow up appointment, plaintiff began experiencing pain and went to another hospital, where they discovered that his appendix had not been removed in the first surgery.

Plaintiff sent pre-suit notice of his HCLA claim to defendant on March 1, 2018, and filed his complaint on August 6, 2018. Defendant moved for summary judgment, which the trial court granted on two grounds. The trial court ruled that the claim was barred by the statute of limitations and that plaintiff had not provided sufficient proof of causation or damages. On appeal, the trial court’s rulings were reversed in part, vacated in part, and the case was remanded.

Where defendant received a citation for violating a Tennessee municipal ordinance in a car accident, the one-year statute of limitations applied. The limitations period was not extended to two years under Tenn. Code Ann. § 28-3-104(a)(2) because the municipal code violation was not a criminal charge or criminal prosecution.

In Peterson v. Carey, No. E2022-01656-COA-R3-CV (Tenn. Ct. App. Oct. 23, 2023), plaintiff was injured when he was in a car accident while riding as a passenger in defendant’s vehicle. After the accident, defendant received a citation for violating a municipal code, which carried a maximum fine of $50.

Plaintiff filed this action more than one year after the date of the accident, and after an initial appeal and remand, the trial court considered plaintiff’s argument that the statute of limitations was extended to two years under Tenn. Code Ann. § 28-3-104(a)(2). The trial court ruled that the two-year extension did not apply here because the code violation was civil in nature rather than criminal, and it therefore granted summary judgment to defendant. On appeal, this ruling was affirmed.

Where a car accident plaintiff filed suit, had service issued but not served, and then failed to have new process issued within one year from the issuance of the first service, the plaintiff could not rely on the fact that defendant received a traffic citation in the accident to extend the time within which service was required to be issued.

In Briars v. Irving, No. W2022-01159-COA-R3-CV (Tenn. Ct. App. Sept. 22, 2023), plaintiff and defendant were involved in a car accident, and defendant was given a citation for crossing the center line of the roadway. Plaintiff filed suit within the one-year statute of limitations and had service issued on July 2, 2020, but that summons was not served. A new summons for defendant was not issued until September 3, 2021. After being served, defendant moved to dismiss, which the trial court granted and the Court of Appeals affirmed.

Tenn. R. Civ. P. 3 states that when process is issued but not served, a plaintiff must “continue the action by obtaining issuance of new process within one year from issuance of the previous process.” Here, plaintiff did not have the new process issued until well beyond one-year after the first, unserved process was issued.

Where a pro se plaintiff knew about defendants’ alleged legal malpractice more than one year before he filed suit, summary judgment based on the statute of limitations was affirmed.

In Garrett v. Weiss, No. E2022-01373-COA-R3-CV (Tenn. Ct. App. May 25, 2023), plaintiff filed a legal malpractice claim against defendant attorneys based on their representation of him in an underlying divorce case, which included an order of protection against plaintiff. The order of protection was entered on May 30, 2017, and stated that plaintiff could no longer reside at a Tellico Plains residence, but the order was supposed to specify a different residence located in Sweetwater.

Beginning in June 2017, “Plaintiff informed Defendants on more than one occasion that the Circuit Court had erred in its May 30, 2017 amended of or protection by listing the incorrect address[.]” In August 2017, plaintiff was arrested due to his refusal to leave the Tellico Plains address, and he was incarcerated for six months. On March 5, 2018, plaintiff filed a pro se motion to alter or amend the order of protection by correcting the address, which was granted in April 2018.

Ordinarily and subject to several important exceptions, the statute of limitations in Tennessee personal injury cases is one year.    One exception to that rule is Tenn. Code Ann. § 28-3-104(a(2), which addresses situations where the civil defendant faced criminal charges as a result of a incident giving rise to the cause of action.  However, a new decision declares that where a defendant in a car accident case received a traffic citation for violation of a city code ordinance, the statute of limitations for filing a claim related to that accident was not extended under Tenn. Code Ann. § 28-3-104(a)(2).

In Glover v. Duckhorn, No. W2022-00697-COA-R3-CV (Tenn. Ct. App. May 2, 2023), plaintiff and defendant were involved in a car accident, and defendant received a traffic citation for violation of a city code ordinance for failure to maintain a safe lookout. No other citation was issued. One year and one day after the accident, plaintiff filed this personal injury action, and defendant filed a motion to dismiss based on the one-year statute of limitations. Plaintiff asserted that the limitations period was extended to two years under Tenn. Code Ann. § 28-3-104(a)(2), but the trial court granted dismissal, and the Court of Appeals affirmed.

Personal injury suits are subject to a one-year statute of limitations under Tenn. Code Ann. § 28-3-104, but subsection (a)(2) extends the limitations period to two years under certain circumstances:

Where the trial court took judicial notice of items from the court case underlying a tort action for invasion of privacy, abuse of process, and intentional infliction of emotional distress, it did not convert the motion to dismiss to a motion for summary judgment and dismissal of the claims based on the statute of limitations was affirmed.

In Doe v. Rosdeutscher, No. M2022-00834-COA-R3-CV (Tenn. Ct. App. April 27, 2023), plaintiff had filed an underlying HCLA suit. Plaintiff eventually took a voluntary nonsuit in that case, and following a motion by defendants in that case, the trial court assessed Rule 37 and Rule 11 sanctions against plaintiff’s counsel.

Plaintiff then filed this action against the defendants and the defendants’ attorneys from the previous HCLA case. In this case, plaintiff asserted claims for invasion of privacy, abuse of process, intentional or reckless infliction of emotional distress, and breach of contract based on the allegation that defendants “filed Plaintiff’s medical records in the healthcare liability action which included nude photographs of Plaintiff and details about her sexual and mental health history[.]” Defendants filed a motion to dismiss, which the trial court granted. The trial court also assessed damages against plaintiff and Rule 11 sanctions against plaintiff’s attorney. On appeal, these rulings were affirmed.

Where a patient left the hospital with known pressure ulcers and no wound treatment plan, the statute of limitations for his HCLA (health care liability act, formerly known as medical malpractice) claim related to those skin wounds began to run on the day he was discharged from the hospital.

In Jackson v. Vanderbilt University Medical Center, No. M2022-00476-COA-R3-CV, 2022 WL 16545403 (Tenn. Ct. App. Oct. 31, 2022), patient was hospitalized at defendant hospital from August 7-24, 2020. During his time there, he “began developing skin breakdowns and pressure ulcers[.]” When patient was discharged on August 24, 2020, he was told to follow up with his primary care physician, but on September 3, patient was taken to a wound treatment center. Patient was later treated at defendant’s trauma center.

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Where plaintiffs alleged that “church entities were negligent regarding the sexual abuse of minors” by a clergyman, and the allegations included claims of fraudulent concealment through an investigation that was actually a “whitewash,” dismissal based on the statute of limitations was reversed. Further, dismissal of plaintiffs’ claim for negligent infliction of emotional distress based on the entities disclosing plaintiffs’ names to the media was also reversed, as the Court concluded that defendants did have a duty to plaintiffs and the act of releasing plaintiffs’ names was sufficiently outrageous to sustain the tort claim.

In Doe v. Woodland Presbyterian, No. W2021-00353-COA-R3-CV, 2022 WL 1837455 (Tenn. Ct. App. June 3, 2022), the three plaintiffs were former members or attendees of Woodland Presbyterian Church, and all three alleged that former paster Stanford had sexually assaulted them in the 1990s when they were minors. Plaintiffs filed this suit in May 2020 against Stanford and several church entities, asserting claims for negligence and negligent infliction of emotional distress. (The claims against Stanford were not at issue on appeal). Plaintiffs asserted, among other things, that church leaders knew Stanford was having young boys spend the night at his home, that defendants “failed to have policies in place that would prevent Pastor Stanford from being alone with minors on church-owned property,” and that defendants failed to have proper policies and training. Further, plaintiffs alleged that when the current pastor was contacted about the abuse allegations in June 2019, he stated that he believed the allegations because he had heard similar stories, and that the situation had been “fully investigated.” Plaintiffs asserted that they later learned that this alleged investigation was a ”whitewash” and attempt to cover up the abuse.

Defendants filed motions to dismiss, which the trial court granted, finding that the claims were barred by the statute of limitations. The trial court noted that plaintiffs were minors when the abuse occurred, and that they “would have had at least a year from the time that they turned 18 to…pursue their claims,” but that such time period had long since passed. The trial court ruled that because plaintiffs knew what happened when they were minors, reported it then, and “knew what investigation was or was not done then,” the statute of limitations began to run when they turned 18. In addition, as to two defendants, the trial court found that it lacked personal jurisdiction over them. On appeal, the ruling regarding personal jurisdiction was affirmed, but dismissal based on the statute of limitations was reversed.

Where defendant was contracted to provide food services to a hospital, and decedent’s injury was allegedly a result of actions or omissions from the food service provider, the Court of Appeals affirmed the finding that the discovery rule applied and plaintiff’s pre-suit notice was timely even though it was sent more than one year after the injury, as nothing in the record indicated that plaintiff could have or should have discovered defendant’s identity earlier.

In Archer v. Sodexo Operations, LLC, No. W2020-01176-COA-R9-CV, 2022 WL 1657222 (Tenn. Ct. App. May 25, 2022), decedent was transported to a hospital emergency room and admitted due to complications with his PEG tube, through which he received nutrition. Decedent had an order that nothing be given to him by mouth, but on August 26, 2018, the morning after his admission, he was given a full breakfast tray. Decedent aspirated on the food, was found unresponsive, had multiple rounds of CPR performed, was transferred to a long-term care facility, and eventually died in February 2019.

On June 26, 2019, plaintiff, who was decedent’s son, sent pre-suit notice of his HCLA claim to the hospital where decedent was treated. On June 27, counsel for the hospital emailed plaintiff’s counsel and stated, “I don’t know much about this one but from what little I know this may be an issue with the dietary people. Dietary is contracted out to Sodexo (I think).” After further communication, counsel for the hospital stated that it was informing plaintiff pursuant to Tenn. Code Ann. § 29-26-121(5) that there might be another defendant because dietary services were contracted out.

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