Procedural issue precludes recovery against UM carrier

Suit against a UM carrier in Tennessee can be complicated.  In Liput v. Grinder, 38 TAM 24-5 (2/27/2013), the plaintiff was injured while walking in a parking lot on November 10, 2009, when he was struck by a car operated by the tortfeasor. On July 14, 2010, the tortfeasor died of unrelated causes. Just prior to the one year anniversary of the incident, the plaintiff filed suit, and attempted service on the deceased tortfeasor.  The tortfeasor was obviously not served with the lawsuit.  The UM insurer was served and filed an Answer.  Thereafter, the plaintiff apparently learned of the tortfeasor’s death and filed a suggestion of death on March 31, 2011. After filing the suggestion of death, nothing happened until the UM insurer filed a motion for summary judgment on November 18, 2011. The trial court ruled in favor of the UM insurer because a law suit was never properly commenced against the proper defendant.

The reviewing court upheld the trial court’s dismissal of the case.

After outlining the facts of the case, the Court discussed TCA 20-5-103, which tolls the statute of limitation for the period of time between the death of the tortfeasor and appointment of the representative of the estate, up to 6 months.  The plaintiff did not serve a personal representative, and it is unknown if one actually existed.

Interestingly, the UM statute seemingly almost allowed the plaintiff’s cause of action to survive.  A direct action is permitted against a UM carrier where a return of summons states the defendant is “not to be found.”  For whatever reason, in this case, the summons was never returned to the Clerk of Court.  Whether or not the Court would have allowed the case to proceed as a direct action against the UM carrier if the return of summons had been filed with the Clerk is unknown; though the Court seems to give the argument a fair amount of weight.

And finally, the Court rejected the plaintiff’s contention that the UM insurer waived its argument with regard to service by failing to raise the defect as an affirmative defense.  The Court noted that other cases have not imposed such a requirement; and further noted that there was no evidence to suggest that the UM carrier knew of the tortfeasor’s death.

The harsh result reached in this case is unfortunate considering the facts.

Interestingly, the tortfeasor’s liability insurer settled the case for policy limits with the plaintiff about 3 weeks after the insured had died, but prior to the plaintiff filing the lawsuit.   Under the Tennessee UM statute, such a settlement would require the UM carrier to either allow the settlement and proceed to arbitration, or front the money to preserve the right to a jury trial.  I can’t help but think that the UM statute was not complied with in this case.  If there was compliance with the UM statute, it’s hard to imagine practically and legally how the UM carrier would have been able to get the case dismissed.

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