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Thursday, November 07, 2019

New Case on Proper Way to Maintain Suit When Plaintiff Dies from Something Other Than Injuries That Form the Basis of the Pending Suit; Case Remanded to Determine If Substitution May Be Had Based on Excusable Neglect

The Tennessee Court of Appeals just released its opinion in Joshlin v. Halford, No. W2018-02290-COA-R9-CV (Tenn. Ct. App. Nov. 6, 2019).  The syllabus from the slip opinion reads:
In this interlocutory appeal, the defendants appeal the trial court’s denial of their motion to dismiss a medical malpractice lawsuit on the ground that the plaintiffs failed to comply with Tennessee Rule of Civil Procedure 25.01. We reverse the decision of the trial court and remand the case for further proceedings.
Here is a link to the opinion:

NOTE: Like the case in my prior post, this is also a must-read decision about the difference between a wrongful death claim and an injury claim that survives the death of the injured person under Tennessee’s survival statues.  Those two types of claims are different because the former is not property of the deceased’s estate while the latter is.  That distinction makes a big difference when it comes to maintaining the claims postmortem.

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.