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Friday, November 01, 2019

New Case on Proper Way to Sue When Defendant Dies Before Suit Is Filed: Case Dismissed Because Plaintiff Failed to Properly Bring Suit Within Time Allowed by Law

The Tennessee Court of Appeals just issued its decision in Khah v. Capley, No. M2018-02189-COA-R3-CV (Tenn. Ct. App. Oct. 31, 2019).  The syllabus from the slip opinion reads:
This appeal arises from the dismissal of a personal injury action in which the alleged tortfeasor died before suit was filed. Upon a motion to dismiss, the trial court determined that the suit was barred by the applicable statute of limitations. Because no personal representative was appointed for the deceased tortfeasor and more than a year had elapsed following the accrual of the plaintiff’s cause of action, we affirm the dismissal.
Here is a link to that opinion:

NOTE: This is a must-read case for any lawyer who handles motor-vehicle tort cases (and any other case where a defendant dies prior to suit being filed).

This is a Davidson County (Nashville) case.  Plaintiff’s lawyers are from Shelby County (Memphis).  I do not know this to be fact, but, I suspect that Plaintiff’s lawyers did not have access to CaseLink (a system much like PACER in fed. ct. that is used in Davidson County).  Had they had access, they could have seen that the first return in general sessions court (Tenn. small claims court) was due to the tortfeasor’s death, and, hopefully, revived the case properly.  

Further, this case illustrates why I am of the opinion that cases like this should be filed a step up in circuit court for myriad reasons.  This is an unfortunate result.

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