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Davis v. Grange Mutual Casualty Group

Court of Appeals of Tennessee, Nashville

September 28, 2017

ANNIE DAVIS, ET AL.
v.
GRANGE MUTUAL CASUALTY GROUP, ET AL.

          Session August 22, 2017

         Appeal from the Circuit Court for Davidson County No. 15-C-1077 Joseph P. Binkley, Jr., Judge

         This case involves the interplay between the statute of limitations, Rule 3 of the Tennessee Rules of Civil Procedure, and Tennessee Code Annotated section 56-7-1206(d), allowing direct actions against uninsured motorist insurance carriers. The trial court granted the defendant uninsured motorist insurance carrier's motion to dismiss. Discerning no error, we affirm.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

          Jonathan E. Richardson and Karl E. Pulley, Nashville, Tennessee, for the appellants, Annie Davis and William Davis.

          C. Benton Patton and Jennifer P. Ogletree, Nashville, Tennessee, for the appellee, Grange Mutual Casualty Group and Steven G. Hobock.

          J. Steven Stafford, P.J., W.S., delivered the opinion of the court, in which Frank G. Clement, Jr., PJ., M.S., and Richard H. Dinkins, J., joined.

          OPINION

          J. Steven Stafford, P.J.

         Background

         Plaintiffs/Appellants Annie and William Davis ("Appellants") filed a complaint on March 20, 2015, alleging that they suffered injuries in a motor vehicle accident that occurred on March 21, 2014. In their complaint, the Appellants name Steven G. Hobock, and their purported uninsured/underinsured motorist insurance carrier, Grange Mutual Casualty Group ("Grange"), as defendants.

         Prior to filing their complaint, Appellants had contact with Grange regarding a possible settlement.[1] After filing the complaint, however, the case languished with no activity for over a year. Indeed, it is undisputed that Appellants' did not cause a summons to issue to either defendant until April 19, 2016. On April 21, 2016, the summons issued to Mr. Hobock at his last known address was eventually returned by the Davidson County Sheriff stating that "Steven Hoback [sic] is not to be found in my county."

         On April 25, 2016, the trial court sua sponte dismissed the action for failure to prosecute. Appellants then filed a "Motion to Set Aside Final Order/Reinstatement of Cause of Action"[2] on May 24, 2016. The same day, the Commissioner of Insurance returned the April 19, 2016 summons issued to Grange unserved. Appellants caused another summons to be issued to Grange on June 6, 2016, to be served by certified mail. A second summons was also caused to be issued to Mr. Hobock on June 7, 2016. Mr. Hobock's summons was returned unserved on June 14, 2016, indicating that Mr. Hobock died in early 2015. The trial court granted the Appellants' motion to set aside the order of dismissal on July 12, 2016.

         On July 7, 2016, Trustgard Insurance Company ("Appellee") filed a notice of limited/special appearance asserting that Appellants incorrectly identified Grange as Appellants' uninsured motorist carrier and that Appellee was instead the appropriate entity.[3] Appellee then filed a motion to dismiss the subject action for insufficient service of process and for failure to comply with Rule 3 of the Tennessee Rules of Civil Procedure. Appellee argued that because Appellants did not issue any summons to any defendant until April 19, 2016, they could not rely on the original filing date to toll the one-year statute of limitations applicable to claims for personal injuries. Appellee also asserted that because the statute of limitations had expired against Mr. Hobock, the alleged tortfeasor, the action against it as Appellants' uninsured motorist insurance carrier was also barred.

         The trial court granted Appellee's motion to dismiss on September 22, 2016. Specifically, the trial court found that it is undisputed that Appellants did not issue summonses to Appellee or Mr. Hobock until April 19, 2016, more than one year after the filing of the complaint; therefore, Appellants could not rely on the original filing date of their complaint to toll the one-year statute of limitations applicable to this action. Accordingly, the trial court dismissed the case against Mr. Hobock for failure to comply with Rule 3 and additionally dismissed the case against Appellee because Appellants failed to establish liability against the alleged tortfeasor as required by Tennessee law. Appellants thereafter filed a motion to reconsider, which the trial court denied.

         Issue Presented

         The sole issue, as we perceive it, is whether the trial court erred in dismissing the case for failure to timely issue service of process, resulting in the expiration of the statute of limitations.

         Standard of Review

         Because this case is centered on service of process and statute of limitations issues, we will discuss the applicable standards of review in turn. Considering an appeal from a trial court's grant of a motion to dismiss for insufficiency of service of process, we view all factual allegations in the complaint as true and review the trial court's conclusions of law de novo with no presumption of correctness. Tenn. R. App. P. 13(d); Fisher v. Ankton, No. W2016-02089-COA-R3-CV, 2017 WL 3611035, at *3 (Tenn. Ct. App. June 27, 2017) (citing Mid-South Indus., Inc. v. Martin Mach. & Tool, Inc., 342 S.W.3d 19 (Tenn. Ct. App. 2010)).

         Motions to dismiss are governed by Rule 12.02 of the Tennessee Rules of Civil Procedure and may include motions based upon insufficient service of process or failure to state a claim upon which relief may be granted. According to Rule 12.02: "If, on a motion asserting the defense [of] failure to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment[.]" Tenn. R. Civ. P. 12.02. However, "even though the trial court consider[s] matters outside the pleading, the motion [is] still properly treated as a motion to dismiss since in involves [the] issue[] of service of process." Milton v. Etezadi, No. E2012-00777-COA-R3-CV, 2013 WL 1870052 (Tenn. Ct. App. May 3, 2013). In other words, when ruling on motions to dismiss regarding service of process, ...


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