The Tortfeasor Dies Before Suit Was Filed. Now What?

Your new client thought she could avoid hiring a lawyer and instead work out on her own a settlement with the insurance claims representative for the other driver. The dance lasted 10 months. “Wait until the end of medical treatment.” “Sign these forms.” “Send me your medical bills.” “I need your EOB forms.” “Your employer needs to confirm in writing your lost wages.” And so on.

She (finally) has concerns about whether she is going to be treated fairly and hires you as her lawyer. You have two months to investigate and evaluate the case, and to file a lawsuit. Your chance to settle the case pre-suit is long gone.

You interview your client, talk to the three witnesses identified on the crash report, and visit the scene. You believe liability can be established. You order documents that will establish your medical and loss of earning capacity claims. You draft a complaint. You ask your assistant to confirm the address of the at-fault driver as shown in the crash report so that you can have a summons issued and obtain service of process.

Your assistant discovers the residence at the address listed in the crash report for the at-fault driver was sold four months after the crash. A search of the property tax assessor’s records for the same county reveal the at-fault driver did not purchase another home in that county. An internet search reveals your at-fault driver died two months after the crash. Facebook research reveals he probably died of cancer. The one-year anniversary date of the crash[1] is two weeks away.

Now what?

Do not panic. Under Tennessee law, your client’s cause of action in this motor vehicle case survives the at-fault driver’s death. This was not true under common law — the failure to file suit against a defendant before his or her death left the plaintiff with a claim that “abated” – i.e., it essentially was deemed to have died with the tortfeasor. However, Tennessee adopted a survival statute, also referred to as an anti-abatement statute, which allows the plaintiff’s claim to survive the defendant’s death and sets forth how to keep the claim alive.

The statute, Tenn. Code Ann. § 20-5-103, preserves the cause of action against the deceased tortfeasor if the plaintiff “strictly follows” the procedure outlined in the statute.[2] The statute does not create a new cause of action but merely preserves the cause of action the plaintiff had before the tortfeasor died.[3] A plaintiff is required to file suit against the personal representative of the decedent.[4] If the decedent does not have a personal representative, the plaintiff must petition the court for an administrator ad litem to serve as the defendant in the deceased tortfeasor’s place.[5]

These actions must be taken promptly, although the law gives a plaintiff extra time to take legal action in such cases. Tenn. Code Ann. § 28-1-110 suspends the passage of time under the applicable statute of limitations from the date of the death of the tortfeasor until a personal representative has been appointed, not to exceed six months.

Stated differently, plaintiff’s counsel may have as much as an additional six months to file suit against the tortfeasor’s personal representative, but the six months of additional time could be shortened if a personal representative was in fact appointed for the tortfeasor.[6] If the personal representative is appointed three months after death, the statute of limitations deadline is extended by three months. But, if a personal representative is not appointed or is appointed more than six months after death, the deadline for filing suit is extended only six months.

Thus, upon learning of the potential defendant’s death, Plaintiff’s counsel should search the records of the probate court in the decedent’s home county to see if an estate has been opened. If an estate was opened and is still open, suit should be filed against and service of process obtained, on the executor or administrator of the estate. While counsel will want to do this as promptly as possible, it would be prudent to determine the decedent’s date of death and the date of appointment of the administrator or executor so that a determination can be made about how much time should be added to the applicable one-year statute of limitations (not to exceed six months).

If an estate was opened for the tortfeasor but is now closed, promptly file a petition to reopen the estate and have an administrator ad litem appointed.[7]

If no estate was opened for the tortfeasor, file an action in the decedent’s home county seeking the appointment of an administrator ad litem. Then act promptly to file suit against and serve process on the administrator ad litem.

And how do you avoid the surprise of finding out your defendant has died before you file suit? Do an early internet inquiry on the potential defendant, and make a note to do another search well before the expiration of the one-year statute of limitations. Such an inquiry should pull up the decedent’s obituary. Pay attention to the language on the return of the summons form.[8] If a summons comes back “not to be found” consider that death might explain why she was not found and look again for record of an obituary on the internet. And, when you determine the adverse party has in fact died, confirm the date of death, determine if a personal representative has been appointed, and re-calculate the deadline for filing suit.

Notes

  1. Tenn. Code Ann. § 28-3-104 establishes a one-year statute of limitations in personal injury and wrongful death cases.
  2. Vaughn v. Morton, 371 S.W.3d 116, 120 (Tenn. Ct. App. 2012) (quoting Brooks v. Garner, 194 Tenn. 624, 254 S.W.2d 736, 737 (Tenn. 1953)).
  3. Liput v. Grinder, 405 S.W.3d 664, 672 (Tenn. Ct. App. 2013).
  4. See Tenn. Code Ann. § 20-5-103; Tenn. Code Ann. § 30-1-109; Goss, 751 S.W.2d at 824 (stating an action preserved by the survival statute may only be instituted against the personal representative of the tortfeasor).
  5. Vaughn, 371 S.W.3d 116, 120 (citing Tenn. Code Ann. § 30-1-109).
  6. For a recent case applying these principles, read Putnam v. John W. Leach Administrator Ad Litem, No. W2017-00728-COA- R3-CV, 2017 WL 522427 *6 fn. 9 (Jan. 18, 2018).
  7. If the tortfeasor was an out-of-state resident, make inquiry of a probate lawyer from that state as to how to obtain service of process in this situation. Indeed, it makes good sense to consult with a probate lawyer even if the deceased tortfeasor is a Tennessee resident unless you are very familiar with the ins-and-outs of probate court.
  8. The process server in the Putnam matter wrote on the summons the defendant was deceased. Plaintiff’s counsel did not see the entry, and by the time he figured out the defendant was dead, the statute of limitations (as extended by the survival statute) had expired.

“John JOHN A. DAY represents plaintiffs in personal injury and wrongful death cases across Tennessee from offices in Brentwood and Murfreesboro. Dying defendants are just one of hundreds of legal issues that keep him from getting a full night of sleep.

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