Trial Court's Dismissal Upheld on Appeal: Case Where Tortfeasor Died After Crash Was Not Timely Commenced

The Tennessee Court of Appeals released its decision in Algee v. Craig, No. W2019-00587-COA-R3-CV (Tenn. Ct. App. Mar. 31, 2020) today.  The syllabus from the slip opinion reads:

This personal injury action concerns an automobile [collision]. The [tortfeasor] died shortly after the [collision]. The estate was opened, administered, and closed before the plaintiff filed suit against the former personal representative within the applicable statute of limitations. The personal representative moved to dismiss for failure to state a claim. The plaintiff moved to enlarge the time for filing service of process based upon a claim of excusable neglect. The trial court dismissed the action as untimely. We affirm. 

Here is a link to the opinion: 

http://www.tncourts.gov/sites/default/files/algeerobertopn.pdf

NOTE: This case is another example of just one more thing that keeps plaintiff lawyers up at night.  It seems like an unfair result.  However, the plaintiff could have had an administrator ad litem appointed before the time to do so had expired.  Algee, No. W2019-00587-COA-R3-CV, slip op. at 2; accord Estate of Russell v. Snow, 829 S.W.2d 136, 138 (Tenn. 1992); Whaley v. Estate of Crow, CA No. 03A01-9105-CH-169, 1992 WL 60878, 1992 Tenn. App. LEXIS 296, at *4 (Tenn. Ct. App. Mar. 30, 1992).  

And that appointment could have been sought even after the time to file the civil action had expired since the case had been (re)filed within the time allowed by law.  See Estate of Russell, 829 S.W.2d 136 at 137.