The failure to serve a lawsuit on the right person within the time permitted by law will give rise to an insufficient service of process defense. If the defense has merit, the case will be dismissed as to the improperly served defendant.
The Facts of the Case
Roberts on behalf of Thomas Sam Edwards v. Hinkle, M.D., No. W4206-01714-COA-R2-CV (Tenn. App. Apr. 9, 2024), involves a motion to dismiss for insufficiency of service of process and for expiration of the statute of limitations. The plaintiff filed a health care liability suit against the defendant physician. The process server attempted to serve the defendant at his office but was unsuccessful. Ultimately the summons and complaint were served on an employee of the hospital where the defendant’s office was located.
The hospital employee, Mr. Paden, wrote on the return that “Accepting for Dr. Nathan Hinkle[,] and “They said they were expecting this[.]”
The doctor’s lawyers answered the complaint but asserted an insufficiency of service of process defense. The answer alleged that “[t]he individual who signed the summons was not an agent authorized by appointment or by law to receive service on [the doctor’s] behalf . . . .”
Over a year later, the doctor’s lawyers moved for dismissal on the defense. The doctor testified that he never gave permission to Paden to accept service of process. Mr. Paden testified that he had accepted process for other doctors but never for Hinkle or Hinkle’s practice. He said his understanding that he could accept the papers did not come from Dr. Hinkle.
The Trial Court’s Holding
The trial court granted the defendant’s motion to dismiss, finding that the plaintiff failed to properly serve the defendant Dr. Hinkle and that the statute of limitations had expired for the health care liability action. The plaintiff appealed the decision.
The Court of Appeals’ Decision
Avoidance of the defense of insufficient service of process required effective service of process. Since the plaintiff did not serve Dr. Hinkle personally, Mr. Paden needed to have actual or implied authority to accept service on behalf of the defendant.
On the issue of implied authority of Mr. Paden to accept service of process for Dr. Hinkle the court said
Mr. Edwards has not presented sufficient proof of any “act or acquiescence” by Dr. Hinkle to establish that an agency relationship existed for service of process. See Hall, 319 S.W.3d at 573 (quoting Bells Banking Co., 938 S.W.2d at 424) (“Implied authority must be predicated ‘on some act or acquiescence of the principal,’ rather than the actions of the agent.”); Meersman, 2018 WL 4896660, at *7 (“[T]he requisite authority to accept service cannot be established
through the actions of the agent.”). Thus, the trial court correctly determined that Mr. Paden did not have express or implied authority to accept service of process on behalf of Dr. Hinkle.
Id. at *8.
The lack of express or implied authority was fatal to the case. Why? Because the insufficient service of process meant that the filing date could no longer be relied upon for purposes of tolling the statute of limitations under the requirements of Rule 3 of the Tennessee Rules of Civil Procedure.
Take-Aways
Promptly review the answer to the complaint to see what defenses have been alleged. If an insufficient service of process defense is alleged in a defendant’s answer, review your file and the court file to determine if there is a possible merit to the defense.
Here, the answer properly alerted one who read the answer that there was a potential problem with the service. It identified a problem with authority of the person service to accept service – a red flag.
Of course, the merits of the defense cannot necessarily be determined from merely looking at the answer, the summons, and the return. But, these documents can help one determine how big of problem exists, if any, and determines the next course of action.
Whether the defense had merit or not, an insufficient service of process issue can often be cured one of two ways. First, a stipulation may be able to be reached with defense counsel to strike the defense. If the defense refuses to do so, the next alternative is to have a new summons issues and served. Rule 3 keeps the door open to have a new summons issued within one year of the date the earlier summons was issued. If the new summons is issued within this period, and is properly served, the original filing date is used for determining compliance with the statute of limitations.
Service of process issues can be complex and, candidly, can involve some gamesmanship by the defense. But, the law of Tennessee provides an opportunity to fix many insufficiency of process issues if the problem is identified and acted on quickly.
One last point. Another way to have a service of process issue is to intentionally delay service of process. Read more at the link.