We all know that that a person who suffers from an “unsound mind” gets the benefit of a tolling of the statute of limitations under T.C.A. Section 28-1-106, which states that “[i]f the person entitled to commence an action is, at the time the cause of action accrued, either within 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 if the injured party, prior to becoming of “unsound mind,” granted a durable power of attorney that gave an attorney-in-fact the duty “act in my name, place and stead in any way which I myself could do, if I were personally present, with respect to … claims and litigation…?” Does the presence of that durable power of attorney trump the “unsound mind” statute, mandating the statute of limitations begin to run as if the plaintiff were not of unsound mind?
I have worried about this issue for years. We how have an answer from the Eastern Section of our Court of Appeals hearing a case arising out of the Middle Section. The plaintiff in the case held a durable power of attorney from his father. The father was a resident in the defendant’s nursing home and became of “unsound mind.” According to the opinion, “[t]he plaintiff frequently visited the deceased during the latter’s stay at the defendant’s facility. The plaintiff would later testify that, at the time of his visits, he observed problems in the defendant’s care and treatment of his father, which he believed were harmful to him.” More than a year after the father was transferred from the defendant’s nursing home but within one year of the father’s death {when the disability was “removed,” according to the plaintiff) the attorney-in-fact filed a malpractice suit against the nursing home. Defendant sought summary judgment of the statute of limitations issue, arguing that plaintiff had the power and duty to act on behalf of his father and did not do so in a timely fashion. Plaintiff argued that the cause of action was tolled by operation of Section 28-1-106.
In Sullivan v. Chattanooga Medical Investors, LLP, Judge Susano, writing for the Court, first noted the words of Section 28-1-106: “If the person entitled to commence an action is, at the time the cause of action accrued, . . . 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, ….” {Emphasis added by the Court.]
He went on to write as follows: “The statute does not recite, expressly or by implication, that the tolling of the statute of limitations only occurs in those situations where there is no one authorized to act for the disabled individual. On the contrary, ㋔ 28 1-106 specifically grants the tolling protection not only to the disabled individual but also to his or her ‘representatives and privies.’ Though the plaintiff is the individual who brought the action, he brought it in a representative capacity for the alleged wrong done to the deceased. Thus, as we believe was intended by the legislature, the plaintiff, as Administrator of the deceased’s estate, is a ‘representative[]’ of the deceased and not ‘the person entitled to commence an action.’ We hold that the plain and ordinary meaning of the language of ㋔ 28-1-106 simply does not permit this court to conclude that “representatives and privies” does not cover the plaintiff in this case. We think it clearly does.”
The Court rejected the other arguments raised by the Defendant as well. The dismissal of the case was reversed and it was sent back to the Circuit Court for Hickman County for trial.
Until this issue is ultimately determined by the Tennessee Supreme Court this is the only opinion lawyers really have to work with on this issue. It is a well-written, well-reasoned opinion and I would like to think that it is one which will be adopted by the Tennessee Supreme Court. Nevertheless, given the fact that the expiration of a statute of limitations is the civil equivalent of the death penalty, lawyers would be advised to work under the assumption that a specific durable power of attorney such as the one in this case places a burden on the attorney-in-fact to file suit within one year of discovery of a personal injury claim arising in favor of the grantor of the power of attorney.
In the event that the Tennessee Supreme Court elects not to hear this case I urge the Court to direct that this opinion be published. Lawyers need to be able to rely on a published opinion to answer the important questions discussed in this opinion.