Day on Torts
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."
The nursing home proved that the power of attorney that plaintiff had executed in favor of his son gave the son the right to "act in my name, place and stead in any way to which I myself could do, if I were personally present, with respect to . . . claims and litigation.” The document also stated that the power of attorney “shall not be affected by the subsequent disability or incompetence of the grantor.”
Chief Justice Barker authored the opinion for the Tennessee Supreme Court. The Court held that plaintiff claims "are not barred by the one-year statute of limitations because the statute of limitations was tolled by Tennessee Code Annotated section 28-1-106. We also hold that the existence of a durable power of attorney does not remove the protection afforded by section 28-1- 106."
Here is part of the Court’s rationale:
If we were to construe the language in the Tolling Statute—“the person entitled to commence an action”—to include anyone with the authority to commence an action, the Tolling Statute would never apply in any case when a person is deemed to have the authority to act for someone who is disabled because of age or unsound mind. Such a construction would conflict not only with the purpose of the statute but also with our previous jurisprudence, holding that the appointment of a guardian or conservator does not affect the tolling of a statute of limitations. See Abels ex rel. Hunt v. Genie Indus., Inc., 202 S.W.3d 99, 103 (Tenn. 2006). In addition, all minors have some person, either a guardian or a parent or a next friend, who has the authority to file a lawsuit on their behalf. It is our opinion, therefore, that “the person entitled to commence an action,” refers to the person who suffered the legal wrong or to whom the claim belongs. Accordingly, we hold that the statute of limitations is tolled for purposes of the Tolling Statute for so long as the person to whom the claim belongs is under a disability because of age or unsound mind."
The case is Sullivan v. Chattanooga Medical Investors, Inc., M2004-02264-SC-R11-CV (April 24, 2007). Read it here.
There are no particular surprises in this opinion. The rationale of Abels largely controlled the result. The case has the practical effect of extending the statute of limitations for all persons smart enough to have a durable power of attorney in place before they became of unsound mind.
Practitioners then need to inquire whether the potential plaintiff had a power of attorney in place before the injury occurred and then calculate the "new" statute of limitations deadline by determining how long the period of disability lasted. These calculations are fraught with peril and practitioners should bring suit within one year of the date of the injury if reasonably possible under the circumstances.