Day on Torts
Where a tortfeasor died before suit was filed and “no personal representive was appointed for the deceased tortfeasor and more than a year had elapsed following the accrual of the plaintiff’s cause of action,” dismissal of the Tennessee personal injury suit was affirmed.
In Khah v. Capley, No. M2018-02189-COA-R3-CV (Tenn. Ct. App. Oct. 31, 2019), plaintiff was injured in a car accident allegedly caused by defendant on May 12, 2016. Defendant died 18 days after the accident, but on May 11, 2017, plaintiff filed this suit in the general sessions court, being unaware of defendant’s death. The sheriff’s office returned the civil warrant with a note saying “per Father, Jonathan Capley is deceased as of last year.” In March 2018, plaintiff had an alias warrant issued, which was returned noting that defendant was “deceased as of last May 2016.”
On April 9, 2018, defendant’s estate filed a suggestion of death. One month later, plaintiff moved to substitute the estate as the defendant. The estate opposed the substitution and filed a motion to dismiss. The sessions court granted the motion to substitute and the motion to dismiss, and plaintiff appealed to the circuit court. The circuit court also dismissed plaintiff’s claims based on the fact that plaintiff “had not sued the personal representative of the decedent within the applicable statute of limitations,” and the Court of Appeals affirmed the dismissal.
Under Tennessee’s survival statute, a cause of action that survives against a deceased tortfeasor “may be prosecuted against the personal representative of the tort-feasor or wrongdoer.” (quoting Tenn. Code Ann. § 20-5-103(a)).
Thus, a personal representative of a deceased tortfeasor must exist before a right of actions for tort is ripe for enforcement. When no personal representative has been appointed for a deceased tortfeasor, the responsibility of seeking the appointment of an administrator ad litem falls to the plaintiff. …Generally, actions for personal injuries must be brought within one year after the cause of action accrues. But under Tennessee Code Annotated § 28-1-110, the death of the tortfeasor suspends, or tolls, the statute of limitations for that period of time between the death of a person and the appointment of a representative of his estate, up to a period of six months.
(internal citations and quotations omitted).
Under the timeline outlined above, plaintiff’s failure to file a claim against the personal representative of defendant’s estate within the statute of limitations meant that plaintiff’s suit was time-barred. Plaintiff argued, though, that her suit should survive.
First, plaintiff argued that the survival statute steps were not necessary because her case was first filed in sessions court, which the Court quickly rejected. Next, she asserted that a new suggestion of death was required in the circuit court, which the Court also rejected, specifically noting that this “argument ignores that the death of Mr. Capley was apparent from the record based on the returns of both the original and alias warrants.” Third, plaintiff argued that the statute of limitations should have been tolled “because she was unaware of Mr. Capley’s death until the filing of the suggestion of death and the suggestion of death was not filed until after the statute of limitations ran.” The Court reasoned, though, that any equitable argument would fail here because plaintiff must have acted diligently in order to pursue such an argument, and plaintiff here failed to act diligently in that “she delayed filing suit, …she acknowledged failing to review the return on either of the general sessions warrants to determine why they were returned ‘not found.’” Based on the timeline of events, the Court accordingly affirmed the dismissal.
This case reminds us of the stark implications the death of a defendant can have on a case. Here, the defendant died soon after the accident. Because the survival statute puts the onus on a plaintiff to seek the appointment of an administrator if one does not yet exist, plaintiffs must be careful to review any returns of service to make sure that a defendant’s death will not come into play in the case.