Day on Torts
Where a plaintiff filed a Tennessee health care liability (medical malpractice) action and died of unrelated causes while the suit was pending, the cause of action did not automatically pass to his wife. Instead, the suit was “eligible to be revived” and a motion for substitution of party should have been filed within 90 days of the filing of the suggestion of death pursuant to Rule 25.01.
In Joshlin v. Halford, No. W2018-02290-COA-R9-CV (Tenn. Ct. App. Nov. 6, 2019), plaintiff filed a medical malpractice suit against defendants, and his wife was a co-plaintiff asserting loss of consortium claims. While the suit was pending, plaintiff died from causes unrelated to the alleged malpractice. In March 2014, plaintiffs’ counsel filed a notice of death in the HCLA suit, and an estate was opened for decedent in May 2014. In October 2014 defense counsel sent plaintiff a letter stating that “a suggestion of death and a new plaintiff” were needed, but plaintiff responded by sending a copy of the notice of death previously filed.
In June and July 2015, defendants filed motions to dismiss based on plaintiffs’ “failure to timely substitute a proper party for [decedent].” The trial court denied the motion, ruling that the cause of action automatically passed to the wife, and that since she was already a plaintiff, there was no need to do a party substitution. The Court of Appeals reversed this decision.
The Court began its analysis by noting that the general survival statutes for causes of action in Tennessee are distinct from the wrongful death survival statutes. The Court quoted extensively from a previous decision, stating:
Tenn. Code Ann. § 20-5-102 directs the procedural steps to be followed when a party dies. The first phrase in § 20-5-102 addresses how an existing action is to be preserved upon the death of a party—by revival. The manner in which a pending action is to be revived is then provided for at Tenn. Code Ann. § 20-5-103 (causes surviving death of tort-feasor), -104 (revival by or against heirs) and -105 (revival by or against successor in interest). The remainder of § 20-5-102…provides the procedural steps to be taken when a person who has suffered some wrong dies before he or she was able to commence a cause of action.
(quoting Timmins v. Lindsey, 310 S.W.3d 840 (Tenn. Ct. App. 2009) (internal citations omitted)). The Court further noted that it rejected an attempt to “construe the survival statutes and wrongful death statutes together” in the Timmins case.
With this statutory background, the Court concluded that the trial court in this case wrongly applied the wrongful death statutes to find that the cause of action automatically passed to the wife. The trial court applied the second portion of § 20-5-102, but because the suit had been filed prior to the plaintiff’s death, this part of the statute was inapplicable. Instead, “the first part of …§ 20-5-102 is applicable to the facts of this case and the existing action was eligible to be revived.” Who should revive a suit is governed by §§ 20-5-103 through -105. In this case, because an estate had been opened for decedent, his co-executors should have revived the suit.
Once the correct person for revival is identified, that person must follow the method set out in Tennessee Rule of Civil Procedure 25.01. “If a lawsuit is not revived by proper compliance with Rule 25.01, it is abated under the mandatory language of the rule.” (internal citation omitted). Rule 25.01 requires that a motion for substitution be made not later than 90 days after the suggestion of death on the record, which the plaintiff here undisputedly failed to do. While plaintiff argued that subsection (2) of the rule allowed the cause of action to pass directly to the wife because she was a surviving plaintiff in the cause of action, the Court ruled that “Plaintiffs’ reliance on Rule 25.01(2) [was] misplaced.” “Section (2) applied when the right sought to be enforced survives only to the surviving plaintiffs,” but here, even though the wife was also a plaintiff in the HCLA case, her loss of consortium claim was separate and distinct from decedent’s personal injury claim. Decedent’s “claim was his alone, survived his death, and then became an asset of his estate.” (internal citation omitted). Section (2) of the rule therefore did not apply.
Having determined that plaintiff failed to follow the required procedure, the Court reversed the trial court’s decision that the cause of action simply passed to the wife and no substitution was needed. It left open, however, plaintiff’s argument that the error was due to “excusable neglect” and that the 90-day time-frame in which a motion to substitute should have been filed should be extended. Although plaintiffs failed to file a motion for enlargement of time, the Court of Appeals stated that the on remand the trial court “should determine whether Plaintiffs’ response to Defendants’ motion to dismiss should be construed as a motion for enlargement of time” under Rule 6.02.
This opinion is an important read for anyone representing a plaintiff who dies while a suit is pending.