Limitation of Actions

February 3, 2020

Day on Torts Nugget: Discovery Rule May be Used to Add Vicarious Liability Defendant

Occasionally, a plaintiff does not learn until after more than one-year after an event that the person who caused plaintiff’s injuries and losses was working in the course and scope of employment at the time of the incident. How can a plaintiff add the employer as a party defendant and avoid a statute of limitations defense?

First, persuade the lawyer for the individual defendant to allege the fault of the nonparty employer. The decision in Browder v. Morris, 975 S.W.2d 308 (Tenn. 1998) held that Tenn.Code Ann. Sec. 20-1-119 applied to such an allegation and thus a plaintiff could take advantage of the statute’s 90-day window to add the employer as a party defendant and avoid a statute of limitations defense.

Second, move to amend the complaint to add the employer to the case and argue that suit was timely filed because of application of the discovery rule. The rule does not just apply to health care liability actions – -the Tennessee Supreme Court extended the discovery rule to “all tort actions predicated on negligence, strict liability, or misrepresentation.” Doe v. Coffee County Bd. of Educ., 852 S.W.2d 899, 904 (Tenn. Ct. App. 1992) (citation omitted).

January 28, 2020

Legal malpractice claim failed based on statute of limitations.

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

Where plaintiffs knew that a Tennessee judgment had to be renewed when it was ten years old, had not spoken with an attorney at the firm who previously represented them, and had not received any bills or communications about a renewal of the judgment, plaintiffs’ legal malpractice claim filed three years after the judgments needed to be renewed was time-barred.

In Rozen v. Wolff Ardis, P.C., No. W2019-00396-COA-R3-CV (Tenn. Ct. App. Dec. 17, 2019), plaintiffs had been represented by defendant law firm in a 2003 case. In that case, plaintiffs were awarded judgments against two defendants who stole jewelry from plaintiffs’ business, but because those defendants were sent to prison, the judgments were not collected on at the time. When one of the two defendants filed for bankruptcy in 2006, defendant law firm represented plaintiffs to ensure that the judgment was not discharged. After that representation in 2006, plaintiffs “received a letter from Wolff Ardis stating that ‘this matter is completed’ and requesting that [plaintiffs] pay for the legal services performed for them.”

April 25, 2019

Plaintiff Must Name “John Doe” if Other Driver in Car Accident Case is Unknown.

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

In order to bring a direct claim against a plaintiff’s uninsured motorist insurance carrier, the plaintiff must have filed his initial complaint against the uninsured motorist (or “John Doe” if unknown) within the one-year statute of limitations.

In Fults v. MetLife Auto & Home Insurance Agency, Inc., No. M2018-00647-COA-R3-CV (Tenn. Ct. App. March 7, 2019), plaintiff was injured in a hit-and-run car accident on November 16, 2015, and the other driver was never identified. Plaintiff filed suit, naming his uninsured motorist carrier as defendant, on July 14, 2017. Defendant moved for dismissal, arguing that plaintiff’s claim was barred “on the ground that the complaint did not name or contain allegations against a “John Doe” driver, that no summons had been issued against “John Doe”…, and that the statute of limitations…would prevent John Doe from being named as a defendant.” Plaintiff moved to amend the complaint and add John Doe, but the trial court denied the motion to amend and granted the motion to dismiss. The Court of Appeals affirmed.

January 16, 2019

Legal Malpractice Statute of Limitations Applied to Real Property Closing

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

Where plaintiff offered no evidence to refute defendant attorney’s testimony that he told plaintiff about the issues with a title before the closing of a real property purchase, summary judgment on the legal malpractice claim was affirmed based on the statute of limitations.

In Dent Road General Partnership v. Synovus Bank, No. W2017-01550-COA-R3-CV (Tenn. Ct. App. Nov. 26, 2018), plaintiff was a partnership who had worked with defendant attorney on the purchase of three tracts of real property in 2004. Although the contract stated that the parcels would be conveyed by warranty deeds, at closing a quitclaim deed was given for one. Later, in 2011, plaintiff partnership attempted to sell the property, at which time a title search revealed “four pending lawsuits seeking to set aside a fraudulent conveyance [of one parcel]…, several judgment liens, and liens lis pendens.” Within one year of this 2011 title search, plaintiff brought suit against several entities, including a claim for legal malpractice against defendant attorney in connection with the 2004 purchase.

The trial court granted summary judgment to defendant attorney, finding that “the injury for purposes of the discovery rule occurred on the date of closing, Marcy 31, 2004, and that [plaintiffs] were alerted to the injury when they received the quitclaim deed at closing.” The Court of Appeals affirmed this ruling.

October 11, 2018

Discovery Rule Applied in Murder-Suicide Case – Claim Barred

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

Where a plaintiff knew that her father had escaped from a hospital where his family had requested a mental evaluation and then killed his wife and himself, the plaintiff had constructive knowledge of her claim against the treating doctor and hospital as of the day she learned about the murder-suicide.

In Herpst v. Parkridge Medical Center, No. E2017-00419-COA-R3-CV (Tenn. Ct. App. Aug. 23, 2018), plaintiff and her family members took her father to defendant hospital because he was experiencing “paranoia and delusional episodes” and had discussed committing suicide. They chose this specific hospital because it was “the only hospital in Chattanooga that has a dedicated and secured floor for mental evaluations.” Plaintiff and her family requested a mental evaluation of her father and told his treating physician that he was a danger to himself.

On the day after the father’s admission, plaintiff inquired about when the evaluation would be done and did not get an answer. The next day, he had become agitated and plaintiff again got no answers from the nurses, who allegedly stated: “we don’t know, we don’t care, we’re tired of fooling with him…he’s crazy.” Three days after his admission, the father pulled his I.V. out and left the hospital. Sometime in the following two days, he killed his wife and himself, and plaintiff was notified of her parents’ death on July 3, 2013.

October 10, 2018

Appellate Court Court Reverses Summary Judgment – Jury Issue on Discovery Rule

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

Where questions of fact remained regarding when plaintiff should have reasonably been put on notice of defendants’ fraud, summary judgment was inappropriate.

In Coffey v. Coffey, No. E2017-00988-COA-R3-CV (Tenn. Ct. App. Sept. 20, 2018), plaintiff filed suit in 2015 over an alleged fraud that dated back twenty years. In 1995, plaintiff’s husband and mother were killed in a plane crash. Plaintiff’s husband had founded and built two successful companies. The husband’s father was named executor of the estate, and through a series of complicated events, plaintiff alleged that he purchased the two companies for his own benefit and eventually sold them for $45 million, putting the money in a trust for his own heirs, which included the husband’s two children but not plaintiff as the founder’s widow.

According to the complaint, plaintiff was falsely told that there were no buyers for the company and the father’s purchase of the company was characterized as a risk and a favor. Plaintiff asserted that she never saw the full valuation that was done, and that the only copy she was ever given was in a box of documents about the plane crash, which she put into her attic without examining. Plaintiff alleged that she loved and trusted her father-in-law and had no reason to suspect he was fraudulently deceiving her. Plaintiff stated in the complaint that she was assured many times throughout the twenty-year period that everything was done legally and fairly by both the father and her late husband’s brother, who had taken on a role at the companies. Plaintiff also asserted that she asked for the valuation a few times, but that the entire thing was never provided. In 2014, plaintiff’s son, now an adult with a master’s degree in business, alerted her that the companies were being sold for $45 million. At this point, plaintiff located a copy of the valuation in the box of documents related to the crash, and when her son reviewed the documents, he “concluded there had been foul play.”

September 28, 2018

“Discovery Rule” Analyzed in Cancer Treatment Case

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

The statute of limitations on a Tennessee HCLA claim begins to run “once the plaintiff has information sufficient to alert a reasonable person of the need to investigate the injury[.]” (internal citation omitted).

In Dondero v. Accuray Incorporated, No. E2017-01741-COA-R3-CV (Tenn. Ct. App. July 26, 2018), plaintiff had been diagnosed with prostate cancer and, in an effort to avoid having surgery to remove his prostate, went to defendant doctor to discuss CyberKnife treatment. Plaintiff asserted that he was given a pamphlet describing the treatment as having “extreme accuracy” that would “spar[e] surrounding healthy tissue.” Plaintiff underwent five CyberKnife treatments in October 2012 with defendant Dr. Kimsey, and during two he experienced “pain in his penis and a burning sensation in his lower abdomen.”

In July 2013, plaintiff consulted with his general practitioner about blood from his rectum. He was referred to a gastroenterologist in August 2013, and in September had to have a procedure to cauterize damage that plaintiff “admittedly assumed…was caused by the CyberKnife treatment.” At a December 2013 appointment with Dr. Kimsey, plaintiff complained about several problems he was experiencing, including the damage that had to be cauterized, but “Dr. Kimsey told him that this was a common problem associated with cyber knife.”

April 30, 2018

Discovery Rule Applied in Tennessee Health Care Liability Act Case

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

In a misdiagnosis Tennessee health care liability (medical malpractice) case, defendants seeking dismissal based on the statute of limitations were required to “establish that decedent was aware of the alleged misdiagnosis,” not just show that the misdiagnosis was made, in order to establish when the one-year limitation period began to run.

In Shaw v. Gross, No. W2017-00441-COA-R3-CV (Tenn. Ct. App. Feb. 9, 2018), plaintiff was the administrator of decedent’s estate, and the case involved allegations that decedent died as the result of a misdiagnosis. Decedent went to the emergency room on May 17, 2014, complaining of “rib-trunk pain and headache that resulted from a fall.” Defendant doctor ordered lab work and diagnosed decedent with dehydration, sending him home. Decedent returned the next day via ambulance and was diagnosed with sepsis and an inflamed gallbladder. Decedent died less than a month later, on June 14, 2014, and an autopsy report on June 18^th confirmed his cause of death as “septic shock and gangrenous cholecystitis.”

April 30, 2018

New-Added Defendant Loses Effort at Early Dismissal of Action

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

Where a defendant adds an affirmative defense asserting comparative fault against a non-party more than two years after the complaint was originally filed, such assertion may be appropriate and timely if the defendant was diligent in obtaining information about the potential tortfeasor.

In Santore v. Stevenson, No. W2017-01098-COA-R3-CV (Tenn. Ct. App. Feb. 20, 2018), plaintiff was injured when he was hit by a vehicle at a truck stop. Plaintiff filed suit against Cordova Concrete, Inc. and its employee (Cordova) on July 8, 2014. At some later point, Cordova learned that a 911 call had been made from the accident scene, and it sent a subpoena to the City of Memphis to obtain a recording of the call. When the city did not respond, Cordova sent a public records request, and thereafter received an audio file of the call and a Background Event Chronology.

Cordova found a number listed in the chronology and called it multiple times, finally identifying the 911-caller as a truck driver. Cordova arranged to depose the truck driver on August 29, 2016, and during that deposition the caller stated that an Averitt truck hit plaintiff. Based on this information, on September 20, 2016, Cordova filed a motion to amend its answer and assert an affirmative defense of comparative fault against Averitt and its unknown driver. This filing came “more than two years after the complaint was filed but less than three months after obtaining the public records from the City of Memphis.” Cordova and plaintiff agreed to allow the amendment, and plaintiff then amended the complaint to add Averitt and the unknown driver as defendants.

November 22, 2017

Malicious Prosecution Claims – Statute of Limitations

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

A conviction in a criminal case, even if a post-conviction appeal is pending, does not satisfy the element of a “prior action [being] finally terminated in favor of plaintiff” for the purpose of a malicious prosecution claim.

In Moffitt v. McPeake, No. W2016-01706-COA-R3-CV (Tenn. Ct. App. Oct. 10, 2017), plaintiff had been convicted of aggravated assault against the three defendants in a previous criminal case on July 31, 2014. On appeal, his conviction was affirmed in part and reversed in part, and plaintiff pointed out in arguments to the trial court that he had a “pending post-conviction appeal.”

The trial court granted defendants’ motion for summary judgment pursuant to the applicable one-year statute of limitations. The trial court ruled that the limitations period began to run when plaintiff was arrested on May 16, 2013, and that his July 27, 2015 suit was thus untimely. The Court of Appeals rejected this ground for dismissal but affirmed on other grounds.