Day on Torts
Where the trial court dismissed plaintiff’s claims against her uninsured motorist insurance carrier without stating any reason for the dismissal, the dismissal was vacated.
In Saulsberry v. Shannon, No. W2023-00532-COA-R3-CV (Tenn. Ct. App. Nov. 18, 2024) (memorandum opinion), the plaintiff filed suit against several defendants in connection with a car accident: the Shannons, three John Does, and the plaintiff’s uninsured motorist insurance carrier. Service was never issued for the John Does, and service on the Shannons was returned as “service incomplete.” No additional service was issued for the Shannons.
Plaintiff eventually moved to have her case consolidated with one the Shannons had filed against her. Consolidation was granted. Counsel for plaintiff and counsel for the Shannons corresponded about the complaint initially filed by plaintiff, but no additional summons was issued.
One year after the original summons were issued, the Shannons moved to dismiss plaintiff’s claims based on insufficient service of process. The trial court agreed that the Shannons were not properly served, and it dismissed plaintiff’s complaint in total. This appeal followed.
In a memorandum opinion, the Court of Appeals first affirmed dismissal of the Shannons due to insufficient service of process. Plaintiff argued that the Shannon’s attorney properly accepted service, but the Court disagreed. The Court acknowledged that an attorney can accept service on a client’s behalf, but it is the plaintiff’s burden to prove “that the person he or she elected to serve is the defendant’s authorized agent for service of process.” (internal citation omitted). Here, the correspondence between the attorneys did not establish that the Shannons’ attorney was authorized to accept service in this matter. Without such proof, the claim was now time barred and dismissal was appropriate.
Plaintiff’s uninsured motorist insurance carrier argued on appeal that its dismissal was also appropriate. It argued that plaintiff had not made a “diligent effort to serve the Shannons,” and its subrogation right had thus been destroyed. The Court noted, though, that these arguments were not presented to or weighed by the trial court. The trial court had dismissed the case in whole sua sponte without offering any reasoning as to dismissal of the insurance company. Because the trial court did not provide proper reasoning for its action, the Court of Appeals ruled that the dismissal should be vacated and the case remanded.
This memorandum opinion was released 4.5 months after the case was assigned on briefs.