Day on Torts
Here is a handy little decision that reminds of the existence and limits of the suspension statute.
You know the suspension statute. It tells us that "[i]f at any time any cause of action shall accrue against any person who shall be out of this state, the action may be commenced within the time limited therefor, after such person shall have come into the state; and, after any cause of action shall have accrued, if the person against whom it has accrued shall be absent from or reside out of the state, the time of absence or residence out of the state shall not be taken as any part of the time limited for the commencement of the action. " T.C.A. § 28-1-111 (2000).
In Jones v. Johnson. No. W2006-01859-COA-R3-CV (July 16, 2007) the Court of Appeals for the Western Section applied the statute in a personal injury case. You will recall that "the suspension statute is inapplicable to toll a statute of limitations where there is a valid method of service of process on an out-of-state defendant." Arrowood v. McMinn County, 121 S.W.2d 566, 568-69 (Tenn. 1938). However, "[i]n Lam v. Smith, 891 S.W.2d 207 (Tenn. 1994), the Supreme Court recognized an exception to the general Arrowood rule in cases where (1) the plaintiff lacked knowledge that the defendant is an out-of-state resident, and (2) the plaintiff had exercised due diligence in trying to ascertain the location of the defendant, but nevertheless remained unaware of the defendant’s nonresident status."
Here is the bottom line of Judge Kirby’s opinion:
"In this case, it is undisputed that the return of the original summons notified the Plaintiffs that Johnson had moved from Madison County, Tennessee, to Powder Springs, Georgia. Thus, only a few days after filing suit, the Plaintiffs were made aware that Johnson was a non-resident and had been for three months. Clearly, the Plaintiffs have not met the first prong of the Lam exception, namely, that they lacked knowledge that Johnson was an out-of- state defendant. Regarding due diligence, it is undisputed that the Plaintiffs made no attempt to have an alias summons served on Johnson within a year after the original summons was returned, despite having been informed that Johnson had moved to Powder Springs, Georgia. In December 2005, the Plaintiffs inexplicably made a second attempt to effect service of process in Tennessee, despite having been informed that Johnson was living in Powder Springs, Georgia. Cox’s affidavit is best characterized as vague regarding her efforts to find Johnson. She notes that, when the first summons was returned unserved, her “staff searched for [Johnson] using various internet and other sources on many occasions.” There is no affidavit from the unnamed “staff” and the “other sources” are likewise not identified.
Moreover, as the trial court pointed out, the Plaintiffs were in contact with Johnson’s liability insurance carrier, and the carrier would have been required to disclose her address to them pursuant to Tennessee Code Annotated § 56-7-1104 had the Plaintiffs merely requested the information. Cox’s affidavit mentions no attempts to obtain Johnson’s address from this source. Under these circumstances, the undisputed evidence shows that the Plaintiffs did not exercise due diligence in ascertaining Johnson’s address, and the exception in Lam is not applicable. See Ballard v. Ardenhani, 901 S.W.2d 369, 372-74 (Tenn. Ct. App. 1995). Therefore, the suspension statute does not apply in this case, and summary judgment in Johnson’s favor based on the statute of limitations was appropriate." [Footnote omitted.]
Read the entire opinion here.