ANNIE DAVIS, ET AL.
GRANGE MUTUAL CASUALTY GROUP, ET AL.
Session August 22, 2017
from the Circuit Court for Davidson County No. 15-C-1077
Joseph P. Binkley, Jr., Judge
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.
R. App. P. 3 Appeal as of Right; Judgment of the Circuit
Jonathan E. Richardson and Karl E. Pulley, Nashville,
Tennessee, for the appellants, Annie Davis and William Davis.
Benton Patton and Jennifer P. Ogletree, Nashville, Tennessee,
for the appellee, Grange Mutual Casualty Group and Steven G.
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.
Steven Stafford, P.J.
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.
to filing their complaint, Appellants had contact with Grange
regarding a possible settlement. 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."
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" 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.
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. 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.
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
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.
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)).
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, ...