Day on Torts
When someone is harmed by another person who dies before a lawsuit is filed, the injured party can still bring a claim for damages based on the wrongdoer’s conduct as long as certain steps are closely followed in Tennessee’s survival statute, Tenn. Code Ann. § 20-5-103.
When the wrongdoer dies, Tennessee law tolls the statute of limitations for six months, resulting in the injured plaintiff having a total of eighteen months from the date of the injury to properly file suit (based on the standard one year for negligence claims (Tenn. Code Ann. § 28-3-104) plus the additional six months when the tortfeasor passes away (Tenn. Code Ann. § 28-1-110)). After the tortfeasor dies, he or she is no longer the proper party defendant, and instead the claim is filed against the personal representative of the deceased wrongdoer’s estate. If there is no personal representative, then the injured plaintiff must petition the court to appoint a person, called an administrator ad litem, to serve as the defendant in the lawsuit. Not following these steps can result in the plaintiff’s lawsuit being dismissed, as demonstrated in the case of Ferrell v. Milller and Ivey, No. M2013-00856-CO-R3-CV (Tenn. Ct. App. Nov. 27, 2013).
In Ferrell, the plaintiff sued the defendant spouses after the defendant husband fatally shot himself while driving an SUV that crashed into the plaintiff’s car injuring the plaintiff. The crash occurred on June 25, 2010, and the plaintiff filed his complaint on June 20, 2011, naming the deceased defendant husband and the defendant wife. The defendant wife filed an answer to the complaint on December 13, 2011, and highlighted the plaintiff’s failure to appoint and serve an administrator ad litem to preserve the claims against the deceased defendant husband. On December 20, 2011, the plaintiff finally moved the court to appoint an administrator ad litem to accept service of process on behalf of the deceased defendant husband. On March 19, 2012, the court appointed an administrator ad litem, but the plaintiff failed to amend the complaint to name the administrator as the party defendant.
The court of appeals affirmed that the trial court’s decision to dismiss the plaintiff’s claims against the deceased defendant husband as time-barred. Simply put, the plaintiff failed to have an administrator ad litem appointed, substituted as the defendant, and served with process within the statutorily defined eighteen-month time limitations period. Because the plaintiff did not follow the steps set forth in Tennessee’s survival statute, his claims against the deceased husband were prohibited from going forward and lost completely. In addition, the court of appeals upheld the trial court’s dismissal of the plaintiff’s claims against the defendant wife for imputed negligence because claims based on the couple’s agency relationship were extinguished since the claim against the husband was time-barred. The court of appeals remanded the plaintiff’s request to amend his complaint to assert a negligent entrustment claim against the wife due to a lack of express findings in the record, noting the Tennessee Supreme Court ruled in 1993 that when a trial denies a motion to amend "it must give a reasonable explanation for his action. Henderson v. Bush Bros. & Co. 868 S.W. 2d 236, 238 (Tenn. 1993).
The lesson: when suing a deceased wrongdoer, be sure to (1) act quickly to appoint an administrator ad litem if a personal representative has not already been appointed to represent the defendant’s estate, (2) name the deceased’s personal representative as the party defendant, not the deceased defendant, (3) and properly serve the personal representative.
For more information about Tennessee law of negligent entrustment and Tennessee law of imputed negligence click on the links.