In Barrett v. Garton, No. M2022-01064-COA-R3-CV (Tenn. Ct. App. Oct. 6, 2023), plaintiff timely filed suit alleging that the defendant’s negligence caused her to sustain personal injuries in an automobile accident but she failed to have process issued within one year from the filing of the complaint. Defendant sought summary judgment based on a statute of limitations defense. In response, the plaintiff claimed that the defendant should be estopped from asserting a statute of limitations defense because the parties (through the defendant’s insurer) had agreed that issuance of process was unnecessary.
It is important to note that plaintiff failed to have process even issued. The rules of civil procedure require that process be issued by the Clerk of Court and be served. Indeed, the plaintiff did not even bother to attempt to have process issued when faced with a motion for summary judgment on the statute of limitations.
The doctrine of equitable estoppel can be used to avoid an otherwise valid statute of limitations defense. Here is the Court of Appeals’ explanation of the doctrine:
The burden of proof lies with the party seeking to invoke the doctrine of equitable estoppel. Redwing, 363 S.W.3d at 460 (citing Hardcastle, 170 S.W.3d at 85). To invoke the doctrine when a defendant has made a prima facie statute of limitations defense, a plaintiff must demonstrate that: (1) “the defendant lulled [him or her] into putting off filing [his or her] suit by conduct, suggestions, or assurances that the defendant knew or should have known would induce the plaintiff to delay filing suit,” (2) “[his or her] delay in filing suit was not attributable to their own lack of diligence,” and (3) “the delay was not unreasonably prolonged.” Hardcastle, 170 S.W.3d at 85; see also Redwing, 363 S.W.3d at 460. Therefore, the inquiry focuses “on the defendant’s conduct and the reasonableness of the plaintiffs’ reliance on that conduct.” Hardcastle, 170 S.W.3d at 85 (citing Fahrner, 48 S.W.3d at 146).
“Evidence of vague statements or ambiguous behavior by a defendant will not carry the day for a plaintiff asserting equitable estoppel.” Id. Rather, “[t]he plaintiff must identify specific promises, inducements, representations, or assurances by the defendant that reasonably induced the plaintiff to delay filing suit.” Id. Examples of conduct that has prompted a court to invoke the doctrine to defeat a statute of limitations defense include: “(1) a promise not to plead the statute of limitations; (2) a promise to pay or otherwise satisfy the plaintiff’s claim without filing suit; or (3) encouraging the plaintiff not to pursue available legal remedies.” Id. (internal citations omitted).
Id.at *5.
The Court affirmed Judge Thomas Brothers’ finding that the plaintiff did not carry her burden of proof on the application of the doctrine.
Lesson: have process issued and served, even if you have ongoing settlement negotiations with the claims adjuster in the hope to avoid full scale litigation. Ask the adjuster to agree, if writing, that process has been properly issued and served. In return, tell him or her that no counsel need be employed by the insurer and that, if negotiations break down, you will permit the lawyer hired by the insurer 30 days to answer or otherwise plead to the complaint.
But don’t neglect to get process issued. And don’t fail to make an effort to get it timely served – remember the mandate of Tenn. R. Civ. P 4.01(3): ” If a plaintiff or counsel for plaintiff (including third-party plaintiffs) intentionally causes delay of prompt issuance of a summons or prompt service of a summons, the filing of the complaint (or third-party complaint) will not toll any applicable statutes of limitation or repose.”
If you want to take the chance of creating a workable equitable estoppel defense, ask the claims representative to agree, if writing, that it is unnecessary for you have to have process issued or served. When he or she refuses to do so, see above.