Day on Torts
Where plaintiff failed to have service issued for over a year against the defendant driver in a car accident case, her claim against her uninsured motorist insurance carrier was barred.
In Davis v. Grange Mutual Casualty Group, No. M2016-02239-COA-R3-CV (Tenn. Ct. App. Sept. 28, 2017), plaintiff filed suit on March 20, 2015 after a car accident, naming both the defendant driver and her uninsured motorist carrier. The suit was filed within the one-year statute of limitations for personal injury actions, but plaintiff “did not cause a summons to issue to either defendant” until April 19, 2016, which was thirteen months after the complaint was filed. The summons was issued to the driver at his last known address and was returned unserved on April 21st by the sheriff with a notation that the driver was “not to be found in my county.”
On April 25th, “the trial court sua sponte dismissed the action for failure to prosecute.” Plaintiff filed a motion to set the dismissal aside on May 24th, and on the same day process for the insurance company was returned unserved. Second summonses were issued for both defendants on June 6th and 7th, and the driver’s was returned unserved indicating that he had died.
The trial court granted plaintiff’s motion to set aside the dismissal, and the insurance company filed a motion to dismiss “for insufficient service of process and for failure to comply with Rule 3 of the Tennessee Rules of Civil Procedure.” The trial court granted the motion, and the Court of Appeals affirmed.
This case addressed “the overlap among the service of process requirements under Rule 3…, the applicable statutes of limitations involving a motor vehicle accident where one party is an …uninsured motorist, and Tennessee Code Annotated section 56-7-12-6, the uninsured/underinsured motorist direct action statute.” While a personal injury case arising from a car accident must be filed within one-year, a claim under an uninsured motorist policy is subject to a six-year statute of limitations. The two statutes of limitations are connected, though, as “it is well-settled that there can be no legal liability established against an uninsured motorist carrier without first properly commencing a claim against the tortfeasor.” (internal citation omitted). Accordingly, “to avail itself of the less-stringent six-year statute of limitations provided to uninsured motorist insurance carriers, a plaintiff must first meet the requirements of properly commencing a suit against the tortfeasor.”
In this case, the plaintiff filed the complaint within the one-year time limit, but failed to have process issued until more than one year later. Rule 3 of the Tennessee Rules of Civil Procedure states that “[if] process remains unissued for 90 days or is not served within 90 days form the issuance, regardless of the reason, the plaintiff cannot rely upon the original commencement to toll the running of the statute of limitations unless the plaintiff continues the action by obtaining issuance of new process within one year of the filing of the complaint.” Here, plaintiff did not even obtain issuance of the first process within a year of filing the complaint, and thus failed to comply with Rule 3. Plaintiff argued that the summons was the responsibility of the court clerk, but the Court noted that “Rule 3 places the burden on the [plaintiff], rather than the clerk, to properly obtain issuance of process to toll the statute of limitations.” Plaintiff also argued that she substantially complied with Rule 3 because she had negotiated with the insurance company before the suit and the company thus had actual notice of the suit, and she had summons issues “near the time set out in Rule 3.” The Court also rejected this argument, finding that plaintiffs must “strictly comply with the Tennessee Rules of Civil Procedure,” and that “nothing in Rule 3…suggest[s] that substantial compliance satisfies the terms of the rule.” (internal citations omitted). Further, the Court pointed out that “actual notice of the lawsuit is not a substitute for service of process where it is required by the Rules of Civil Procedure.” (internal citation and quotation omitted).
Applying Rule 3 and common law to this case, the Court held:
[Plainitffs] were required to have a summons issued to [driver] within one-year of the filing of their complaint… [Plaintiffs] did not even attempt to have a summons issued until thirteen months after filing their complaint; therefore, they did not strictly comply with the Rules…and consequently allowed their claim against [driver] to lapse. Without a proper claim against [driver], [plaintiffs] claim against [the uninsured motorist carrier] must fail.
(internal citation omitted).
Next, the Court addressed plaintiff’s claim that she “was relieved from strictly complying with Rule 3 by Tennessee Code Annotated section 56-7-1206.” That statute, the Uninsured Motorist Statute, states that if
service of process against the uninsured motorist, which was issued to the motorist’s last known address, is returned by the sheriff or other process server marked, ‘Not to be found in my county,’ or words to that effect…the service of process against the uninsured motorist carrier…shall be sufficient for the court to require the insurer to proceed as if it is the only defendant in the case.
This statute allows a direct action against the uninsured motorist carrier when a plaintiff “is unable to obtain service of process over the uninsured motorist defendant.” (internal citation omitted).
Although a summons was eventually returned stating that the driver was not to be found, the Court said it was “reluctant to conclude that [plaintiff] complied with section 56-7-106(d) when their first effort to both cause to issue and attempt to serve a summons occurs after their claim against the tortfeasor has already expired by virtue of their complete failure to even attempt to comply with Rule 3.” The Court noted that all other cases in which plaintiffs proceeded under this statute involved plaintiffs who “at the very least issued a summons to the tortfeasor within one-year of the filing of the complaint.” (internal citations omitted). Looking at other cases applying the direct action statute, the Court stated that it had “never held that the direct action procedure eliminates the requirement that the plaintiff at least cause an initial summons to be issued within one year of the filing of the complaint.” (internal citations omitted). The Court reasoned that “[i]n [its] view, once the statute of limitations has lapsed on the plaintiff’s claim against the tortfeasor, any subsequent action to bring the uninsured motorist insurance carrier into the lawsuit by virtue of section 56-7-1206(d) could be considered a nullity.”
Ultimately, because of plaintiff’s failure to comply with Rule 3 and the absence of any proof of “due diligence in an effort to locate and serve [driver]” on the part of plaintiff, the Court held that plaintiff could “not rely on the direct action procedure available through Tennessee Code Annotated section 56-7-1206(d).” Dismissal was therefore affirmed.
This case is a thorough analysis of the interplay between statutes of limitations and the uninsured motorist coverage direct action statute. It also serves as a reminder to anyone thinking that a claim may eventually fall to an uninsured motorist insurance carrier to get your claim against the actual tortfeasor filed in a timely manner.