Tennessee Survival Statute Still Confuses Practitioners
What do you do when a defendant dies before suit has been filed? The recent Tennessee Court of Appeals opinion in Putnam v. Leach reminds practitioners that the survival statute and the discovery rule are not the same thing.
On February 2, 2015, Julia Putnam was injured in a motor vehicle accident with Bryane Litsinberger. Exactly one year later, Ms. Putnam and her husband filed suit against Mr. Litsinberger, alleging that his negligence caused the accident. On February 26, 2016, the summons was returned to the Putnams’ attorney with a note that Mr. Litsinberger had passed away on January 4, 2016. However, the Putnams claimed that they did not discover this until the following July, when their attorney noticed the note. On October 21, the Putnams petitioned the probate court to appoint an administrator ad litem to receive process for the lawsuit, which was done that day. Several days later, on October 31, the plaintiffs filed an amended complaint naming the administrator ad litem of the estate, John W. Leach, as the defendant. Mr. Leach moved to dismiss, arguing that the Putnams had not commenced the lawsuit within the applicable one-year statute of limitations. The Putnams argued that the statute of limitations did not commence until after they had discovered Mr. Litsinberger's death. The trial court disagreed, granting the motion to dismiss. The Putnams appealed.
The Court began by addressing the Putnam's argument that under the discovery rule, the one-year statute of limitations did not begin to run until after the plaintiffs had discovered Mr. Litsinberger’s death. The Court took issue with this claim, noting that the discovery rule exists to help plaintiffs suffering from “latent” injuries by tolling the statute of limitations “until the plaintiff knows, or reasonably should know, enough information concerning his or her injuries.” In this situation, Ms. Putnam was aware of her injuries from the moment they occurred, so the discovery rule was inapplicable and the statute of limitations began running on the day of the accident.
Next, the court turned to the Tennessee survival statute, T.C.A. § 20-5-103, which provides that where a plaintiff has a cause of action against a defendant and the defendant passes away, the plaintiff must name the personal representative of the estate as the defendant. Where, as here, there is no personal representative, the plaintiff must petition the probate court to appoint an administrator ad litem. The statute further provides that when a potential defendant dies, the applicable statute of limitations is tolled for six months. Here, the Court found that the six month tolling period ended on July 4, 2016, giving the plaintiffs until August 2 to meet their deadline. However, the plaintiffs waited until late October to petition for an administrator ad litem, even though they had discovered Mr. Litsinberger’s death in mid-July. Since the plaintiffs failed to file a complaint against the appropriate party – the administrator ad litem—by August 2, the Court found that the suit was time-barred.