Limitation of Actions

April 1, 2015

Adding Employer As Defendant More Than One Year After Incident

When a plaintiff files a auto or other personal injury lawsuit, he may not be aware of all the potential defendants that should be named. Fairly often, a plaintiff may seek leave to amend his complaint and add a defendant even after the statute of limitations on the underlying claim has passed, usually citing the discovery rule as justification for this allowance. In a recent negligence case, the Tennessee Court of Appeals explored some of the limits on such allowances.

In Smith v. Hauck, No. M2014-01383-COA-R3-CV (Tenn. Ct. App. March 25, 2015), plaintiffs were in a car struck from behind by a vehicle driven by defendant on an interstate exit ramp. The accident occurred on June 25, 2012, and at the time there was no indication that defendant was driving in the course of his employment—i.e., neither defendant nor the police report mentioned this fact, and he was driving his personal car with no employer insignia. Plaintiffs filed a negligence suit on June 7, 2013, within the one-year statute of limitations, which defendant answered on August 26, 2013. Defendant’s answer did not state or allude to the fact that he was driving on employer business at the time of the accident. Four days later, plaintiffs served interrogatories and requests for production of documents on defendant. These discovery requests included items seeking information related to defendant’s employer and his purpose for driving at the time of the accident. When defendant’s responses were six weeks past due, plaintiffs filed a motion to compel on November 8, 2013. Defendant responded to the interrogatories on December 4, 2013, and for the first time in those responses stated that “he was traveling to St. Thomas Hospital to participate in surgery as part of his employment with St. Jude Medical.” On the same day they received these responses, plaintiffs filed a motion to add St. Jude Medical as a defendant. The motion was granted and plaintiffs filed their amended complaint on December 20, 2013. St. Jude then filed a motion to dismiss based on the one-year statute of limitations, which the trial court granted, but the Court of Appeals overturned.

January 2, 2015

Statute of Limitations – One Day Late Too Late

by The Law Offices of John Day, P.C.

In Redmond v. Walmart Stores, Inc., No. M2014-00871-COA-R3-CV (Tenn. Ct. App. Dec. 22, 2014), plaintiff filed a premises liability claim after she slipped and fell on a puddle of water in a Nashville Wal-Mart. The incident occurred on August 12, 2012, but during plaintiff’s first conversation with her attorney he recorded that it had occurred on August 13^th. On August 13, 2013, plaintiff’s attorney filed the complaint in this action.

Defendant moved for summary judgment on the basis that the action was time-barred by the one-year statute of limitations. The trial court granted the motion. Plaintiff appealed, asserting that the discovery rule tolled the statute of limitations and that “the trial court should have granted an enlargement of the statute of limitations under Tennessee Rule of Civil Procedure 6.02.” The Court of Appeals, however, rejected both of these arguments and affirmed the trial court’s decision.

Plaintiff’s first argument was that even though she was injured in the initial fall, she had additional injuries that she could not have discovered on the day of the incident, and thus the statute of limitations should have been tolled by the discovery rule as to at least those injuries. The Court explained, though, that “a plaintiff’s cause of action accrues when he or she knows or, in the exercise of reasonable care and diligence should know, that he or she has sustained an injury as a result of the defendant’s wrongful conduct.” Here, plaintiff was aware on the day of the fall that she had sustained an injury; she filed a report with the store on the day she fell and suffered from pain and bruising. Accordingly, she knew that her fall “would support an action for tort against the tortfeasor” and the discovery rule did not apply. The fact that her injuries got worse following the day of her fall did not entitle her to invoke the discovery rule to escape the one-year statute of limitations.

September 17, 2014

Tolling Agreements, The Savings Statute and Tennessee Law

by The Law Offices of John Day, P.C.

The Tennessee Court of Appeals recently issued an important decision regarding the interplay between the savings statute and tolling agreements. The facts of Circle C Const., LLC v. Hilson, M2013-02330-COA-R3-CV (Tenn. App. Jul. 29, 2014), are a bit convoluted but critical to understanding the case.

Plaintiff had a judgment entered against it by a trial court. While appealing the judgment, Plaintiff entered a tolling agreement on a potential legal malpractice claim against Defendant, who was Plaintiff’s attorney in the underlying case. The tolling agreement specified the date that the statute of limitations would run – one year from the trial court’s judgment – but gave Plaintiff until 120 days after an appellate ruling in order to file any legal malpractice claim. In pertinent part, the tolling agreement stated, “[i]f Plaintiff desires to assert claims for professional negligence, it must do so on or before” 120 days after the appellate court issued its opinion.

After the tolling agreement was entered, things get strange:

July 2, 2013

An Important Change to the Tennessee Statute of Limitations That Affects the Rights of the Mentally Disabled

by The Law Offices of John Day, P.C.

For many years, the Tennessee statute of limitations was tolled for those of "unsound mind." That law has now changed, and the statue of limitations is tolled only for those who are "adjudicated incompetent." Tenn. Code Ann. Section 28-1-106. Here is the text of the newly worded statute:

If the person entitled to commence an action is, at the time the cause of action accrued, either under eighteen (18) years of age, or adjudicated incompetent, such person, or such person’s representatives and privies, as the case may be, may commence the action, after legal rights are restored, within the time of limitation for the particular cause of action, unless it exceeds three (3) years, and in that case within three (3) years from restoration of legal rights.

Here is how the bill was changed in Public Chapter 47 of the 2011 legislation:

August 9, 2010

Sex Abuse Cases Against Therapists

by The Law Offices of John Day, P.C.

If you have a potential claim for professional misconduct against a therapist for sexually abusing or inappropriately touching a patient, don’t forget that Tennessee has a special act for such torts.

The act is known as the "Therapist Sexual Misconduct Victims Compensation Act." It is codified at T.C.A. Section 29-26-201 et seq.

Under the Act a therapist is "any person who performs therapy regardless of whether the person is licensed by the state."

July 9, 2008

Fascinating Opinion out of Kentucky

by The Law Offices of John Day, P.C.

The Kentucky Court of Appeals has ruled that a product manufacturer "should be estopped as a matter of law from relying on the statute of limitations by virtue of its fraudulent concealment of defects associated with its product."

Plaintiffs claimed that they were injured by a defective voltage meter. The manufacturer of the product asserted a statute of limitations defense. Plaintiffs argued that the "statute of limitations had been tolled by Fluke’s fraudulent concealment of the [meter’s] defect. They contended that as early as 1991, Fluke knew that operating the [meter] at low-battery status could result in inaccurate voltage readings, thus posing a risk of grave danger to its user. Nonetheless, they argued that Fluke ignored its reporting obligation and failed to disclose the potentially dangerous condition of its product to the federal Consumer Product Safety Commission (CPSC). The plaintiffs contended that Fluke should not be permitted or entitled to rely on the statute of limitations defense since it had engaged in a fraudulent concealment of its product’s defect."

The Court agreed, saying "[t]he common law principle of equitable estoppel is soundly established in Kentucky law. [citation omitted.] It is aptly applied to prevent a defendant from asserting the statute of limitations defense." … [I]t appears that the manufacturer indeed remained silent when it had an affirmative statutory obligation to report information relative to the safety of its product. We adopt the cogent reasoning of the Supreme Court of Alaska and hold that parties are entitled to assume that a product is safe if there is no adverse information reported as required to indicate that it may pose a danger."

April 25, 2007

Tolling Statute Applies to Plaintiffs Who Have Given Durable Power of Attorney

by The Law Offices of John Day, P.C.

The Tennessee Supreme Court has ruled that the fact that an injured plaintiff had given his son a durable power of attorney did not prevent the plaintiff from relying on the "mental disability" tolling statute and bringing suit more than one year after an incident.

The nursing home where plaintiff lives asserted a statute of limitations defense to his claim. Plaintiff asserted that his claim was not time barred because he suffered from a disability within the meaning of T.C.A.Sec. 28-1-106. That statute provides that

"If the person entitled to commence an action is, at the time the action accrued, either under the age of eighteen (18) years, or of unsound mind, such person, or such person’s representatives and privies, as the case may be, may commence the action, after the removal of such disability, within the time of limitation for the particular cause of action, unless it exceeds three (3) years, and in that case within three (3) years from the removal of such disability."

November 14, 2006

Minor Can Recover Medical Expenses

by The Law Offices of John Day, P.C.

The Tennessee Court of Appeals has ruled that a minor can sue to recover medical expenses paid to treat injuries received by the minor as a result of the negligence of another. Although most of us (at least those of us who represent plaintiffs) have thought this was probably the law, it is nice to see an opinion from this century addressing the issue directly.

Here is the entire section of the opinion on the subject that addresses this important issue:

"As a final matter, Defendant contends that the trial court erred in admitting evidence of
Plaintiff’s pre-majority medical expenses since a minor does not having standing to assert a claim for expenses incurred on his behalf and Mrs. Craig was not a party to the suit. Tennessee Code Annotated section 20-1-105 provides that a claim for medical expenses incurred by a minor during his or her minority does not belong to the minor, but rather to the minor’s parents. See also Burke v. Ellis, 58 S.W. 855, 857 (Tenn.1900). However, in Smith v. King, No. Civ.A. 958, 1984 WL 586817, at *2 (Tenn.Ct.App. Sept. 21, 1984), the court addressed a substantially similar issue and determined that a minor plaintiff may maintain his or her own cause of action for medical expenses and include the amount of medical expenses incurred on behalf of the minor as an element of his or her damages.

September 15, 2006

The “Unsound Mind” Exception to the Statute of Limitations

by The Law Offices of John Day, P.C.

Tenn. Code Ann. § 28-3-104(a)(1) (2000) provides a one year statute of limitations in personal injury cases (the shortest such statute in the nation). However, Tenn. Code Ann. § 28-1-106 (2000) creates two exceptions to the rule; it provides as follows:

"[i]f the person entitled to commence an action is, at the time the cause of action accrued, either under the age of eighteen (18) years, or of unsound mind, such person, or such person’s representatives and privies, as the case may be, may commence the action, after the removal of such disability, within the time of limitation for the particular cause of action, unless it exceeds three (3) years, and in that case within three (3) years from the removal of such disability."

But what happens when the person of "unsound mind" has a person appointed by the court to look out for him (a conservator)? The Tennessee Supreme Court looked at that issue in an opinion released yesterday. Here are the precise questions posed to the Tennessee Supreme Court from the United States District Court for the Western District of Tennessee.