ROBERT L.McCULLOUGH, JR. et al.
CARLA VAUGHN et al.
Session March 7, 2017
from the Circuit Court for Davidson County No. 14C1784 Kelvin
D. Jones, Judge
action arises out of a two-car accident. Prior to the
commencement of this action, the driver of the vehicle who is
the defendant in this action filed a petition in bankruptcy
court. Shortly thereafter, and being unaware of the
bankruptcy proceeding, Plaintiffs commenced this action
naming the driver of the other vehicle as the only named
defendant. Summons was issued for the defendant driver as
well as Plaintiffs' uninsured motorist insurance carrier.
Summons was served on the carrier; however, summons for
Defendant was returned unserved, and more than a year passed
before Plaintiffs requested issuance of an alias summons.
Upon motions of the defendant and the uninsured motorist
carrier, the trial court dismissed all claims as time barred
upon the finding that Plaintiffs failed to comply with Tenn.
R. Civ. P. 3 by obtaining the issuance of a new summons for
service of process on the defendant within one year of the
issuance of the previous summons that was not served.
Plaintiffs appeal contending their claims are not time barred
because the defendant filed her bankruptcy petition prior to
the commencement of this action and Tenn. Code Ann. §
28-1-109 expressly states, "When the commencement of an
action is stayed by injunction, the time of the continuance
of the injunction is not to be counted." We agree. The
bankruptcy court's automatic stay not only enjoined the
commencement of this action but the issuance of process, and
Tenn. Code Ann. § 28-1-109 expressly states that the
time of the continuance of an injunction is not to be counted
in calculating the statute of limitations. The bankruptcy
injunction remained in effect for 202 days; therefore, that
period is not to be counted. With the addition of 202 days to
the period within which Plaintiffs could obtain the issuance
of an alias summons under Tenn. R. Civ. P. 3, the issuance of
the alias summons was timely. As a consequence, the trial
court's order dismissing this case is vacated, and this
matter is remanded with instructions to reinstate the
complaint as to the defendant driver and the uninsured
motorist carrier for further proceedings consistent with this
R. App. P. 3 Appeal as of Right; Judgment of the Circuit
Court Vacated and Remanded
Dunigan, Goodlettsville, Tennessee, for the appellants,
Robert L. McCullough, Jr. and Helen McCullough.
S. Johnson, Hendersonville, Tennessee, for the appellee,
A. Hawkins and Matthew T. Moffitt, Nashville, Tennessee, for
the appellee, Allmerica Financial Alliance Insurance Company.
G. Clement, Jr., P.J., M.S., delivered the opinion of the
Court, in which Richard H. Dinkins and Arnold B. Goldin, JJ.,
G. CLEMENT, JR., P.J., M.S.
case arises out of an automobile accident that occurred on
February 5, 2014, involving Robert and Helen McCullough
("Plaintiffs") and Carla Vaughn
("Defendant"). On May 1, 2014, Plaintiffs filed a
complaint against Defendant alleging that the accident was
the result of the negligent operation of Defendant's
addition to filing a summons to be served on Defendant,
Plaintiffs also filed a summons to be served on Allmerica
Financial Alliance Insurance Company ("Allmerica"),
Plaintiffs' uninsured/underinsured motorist insurance
carrier, to give Allmerica notice that Plaintiffs intended to
rely on their insurance coverage in the event Defendant was
uninsured or underinsured. Allmerica was served and timely filed
Sheriff of Robertson County attempted to serve the summons
and complaint on Defendant at the address stated on the
summons; however, Defendant had moved and the summons was
returned to the clerk on May 19, 2014, with the following
notation: "[u]nable to serve in Robertson County, new
address: 131 Fern Avenue, Nashville." Over a year later,
on June 1, 2015, Plaintiff filed an alias summons with the
clerk directing service at the Nashville address; however, it
was returned unserved. Plaintiff filed a pluries summons on
August 28, 2015, requesting service at the same Nashville
address, and Defendant was served on September 21, 2015.
to Defendant being served, Plaintiffs' counsel, Marshall
McClarnon, and a claims representative for Defendant's
liability insurance carrier, Direct Insurance, engaged in
settlement discussions. On June 4, 2014, Direct Insurance
informed Mr. McClarnon that it was willing to pay policy
limits of $25, 000 and that its claims file was being
transferred to attorney Jaimee Johnson to prepare the
settlement documents and the necessary court orders. Soon
thereafter, Ms. Johnson notified Mr. McClarnon that, on
February 27, 2014, Defendant had filed a Chapter 13
bankruptcy petition and the automatic stay was still in
effect; therefore, Direct Insurance could not proceed with
the proposed settlement. Upon learning of the pending
bankruptcy, Plaintiffs filed a motion in the bankruptcy court
seeking relief from the automatic stay. The motion was
granted on September 17, 2014.
weeks earlier, on September 2, 2014, Ms. Johnson informed Mr.
McClarnon that Direct Insurance was still willing to tender
policy limits on behalf of Defendant; however, it would
require a waiver of Allmerica's subrogation interest
prior to remitting its payment. Acting on behalf of Direct
Insurance, Ms. Johnson attempted to obtain the waiver from
Allmerica but she was unsuccessful.
November 5, 2015, Allmerica filed a motion to dismiss the
claims against it based on the statute of limitations because
Plaintiffs failed to comply with Tenn. R. Civ. P. 3 by filing
an alias summons within the required time. On November 13,
2015, Defendant also filed a motion to dismiss based on the
statute of limitations.
filed a response to both motions to dismiss, contending that
they relied on their agreement with Direct Insurance to their
detriment in deciding to not immediately reissue service of
process on Defendant after the failed service in May 2014.
They additionally contended that Allmerica was aware of
Plaintiffs' agreement with Direct Insurance; therefore,
Allmerica's motion to dismiss should be denied. Further,
they contended that Allmerica waived the statute of
limitations as a defense by failing to plead it as an
affirmative defense in their answer as required by Tenn. R.
Civ. P. 8.03.
filed a separate motion asking the court to enforce their
settlement agreement with Direct Insurance to pay them $25,
000 on behalf of Defendant. In support of this motion, Mr.
McClarnon filed an affidavit in which he stated, inter
alia, that he and Ms. Johnson had "discussed that
the Defendant did not intend to rely on a statute of
limitations defense because [they] had an ...