Day on Torts
When a potential personal injury defendant dies after an alleged tort, the survival statute will extend the running of the statute of limitations “for a maximum of six months from the date of the death of the tortfeasor or until a personal representative has been appointed.” The fact that a plaintiff may not have actually discovered the death of the potential defendant is not relevant to the tolling of the statute of limitations.
In Putnam v. Leach, No. W2017-00728-COA-R3-CV (Tenn. Ct. App. Jan. 23, 2018), plaintiff was injured in a car accident when defendant crossed the center line and struck her vehicle. The accident occurred on February 2, 2015. Defendant died on January 4, 2016, though plaintiff was unaware of this death. Plaintiff filed suit against defendant on February 2, 2016, and service was returned on February 26, 2016 with a note “indicating that [defendant] was deceased.” Plaintiff’s attorney, however, did not read the note at that time. On July 18, 2016, plaintiff called her attorney to check on the case, at which time the attorney saw the note indicating that defendant was deceased. On October 21, 2016, plaintiff petitioned the probate court to appoint an administrator ad litem, and plaintiff filed an amended complaint naming the administrator ad litem on October 31, 2016.
Defendant administrator filed a motion to dismiss, asserting that plaintiff’s complaint was not timely filed. The trial court granted the motion, and the Court of Appeals affirmed.
On appeal, plaintiff argued that the discovery rule operated to extend the statute of limitations until she actually learned of defendant’s death, asserting that “the one-year statute of limitations period for personal injury did not commence until [plaintiffs] had actual notice of [defendant’s] death.” The Court rejected this argument, pointing out that the discovery rule tolls a statute of limitations “until the injury occurs or is discovered, or when in the exercise of reasonable care and diligence, it should have been discovered.” (internal citation omitted). Here, plaintiff was “fully aware of the nature and cause of [her] injuries on the date of the accident,” and thus the discovery rule was not applicable here.
To determine whether plaintiff’s claim was timely, the Court analyzed the application of Tennessee’s survival statute, Tenn. Code Ann. § 28-1-110, to this case. “The survival statute does not create a new cause of action, but simply preserves a cause of action against a tortfeasor who subsequently dies.” (internal citation omitted). To take advantage of the statute, the steps contained therein must be “strictly followed.” (internal citation omitted). Under the statute, the tort claim must be “filed against the personal representative of the tortfeasor,” or if no estate has been opened, the “plaintiff must petition the court to appoint an administrator ad litem to serve as the defendant in the deceased tortfeasor’s place.” (internal citations omitted). One requirement of utilizing the survival statute is that the claim must be “file[d] within the temporal perimeters established by the survival statute…and the statute of limitations applicable to the plaintiff’s claim.” “When a tortfeasor dies, [the survival statute] acts to suspend, or toll, the statute of limitations for a maximum of six months from the date of the death of the tortfeasor or until a personal representative has been appointed.” (internal citations omitted).
Applying the survival statute to this case, when defendant died on January 4, 2016, there were 29 days left in the original one-year statute of limitations. The survival statute then “tolled the statute of limitations only until either (1) a personal representative was appointed…or (2) six months passed from the date of death.” No personal representative was appointed here, so on July 4, 2016, six months after the death, the statute of limitations began to run again and expired on August 2, 2016, twenty-nine days later. Because plaintiff did not file her claim until October, the claim was time-barred and dismissal was appropriate.
This case is a good explanation of how Tennessee’s survival statute works, as well as a reminder to be diligent in getting process served and looking into why any process issued was not served. Plaintiff’s claim here may have had merit, but because it was not timely filed she will be unable to recover.