Day on Torts
The statute of limitations is tolled when the plaintiff is of unsound mind. Tenn. Code Ann. § 28-1-106. Does the fact that a Durable Power of Attorney (executed before the incompetency) is in existence trump the tolling statute and require the attorney-in-fact to take action within the original statute?
The Tennessee Court of Appeals said "no" in Sullivan v. Chattanooga Medical Investors, L.P., No. M2004-02264-COA-R3-CV – (January 26, 2006). See the original opinion here.
Judge Susano put the issue this way: "Is the tolling effect of Tenn. Code Ann. § 28-1-106 implicated when an individual, while competent, grants another a durable power of attorney, including the power to act for the grantor with respect to “claims and litigation”? The crux of both the defendant’s argument and the trial court’s holding in opposition to the application of § 28-1-106 is that, by granting a durable power of attorney, the deceased removed himself and the plaintiff from the ambit and protection of § 28-1-106."
The essential holding is this: "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, § 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 § 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."
Yesterday the Tennessee Supreme Court said it would review the case.
Does that mean the decision of the Eastern Section will be reversed? Not necessarily. It is fair to say that usually in tort cases the TSC takes cases to reverse them. But that was not true in the Alsip case; Judge Susano was affirmed there. And I predict he will be affirmed in this case.
I think the TSC took this case because it is somewhat similar to a Rule 23 case it is currently considering out of the Western District of the Federal Court. That case involves the effect of the appointment of a conservator on the tolling of a statute of limitations.
Expect a decision in early Spring, 2007.