                   IN THE COURT OF APPEALS OF TENNESSEE
                        WESTERN SECTION AT JACKSON
______________________________________________________________________________

DARRYL JONES, as surviving                Shelby Circuit No. 47678 T.D.
next of kin of GOLDIE JONES,              C.A. No. 02A01-9602-CV-00038
Deceased,



v.
       Plaintiff,
                                                                     FILED
                                                 Hon. Robert L. Childers
                                                                       Dec. 11, 1996
DANA A. WATSON and                                                   Cecil Crowson, Jr.
SHEREE WATSON,                                                         Appellate Court Clerk


       Defendants.

ERICH W. JAMES and GEORGE E. SKOUTERIS, SR., Memphis, Attorneys for Plaintiff.

JOHN D. RICHARDSON and KEVIN COMBS, The Richardson Law Firm, Memphis,
Attorneys for Defendants.

REVERSED AND REMANDED

Opinion filed:
______________________________________________________________________________

TOMLIN, Sr. J.

       Darryl Jones (hereafter “Plaintiff”) filed suit in the Circuit Court of Shelby

County against Dana A. Watson and Sheree Watson (hereafter “Defendants”) to

recover damages for the wrongful death of his wife, Goldie Jones, as a result of a motor

vehicle accident. Defendants were insured by Allstate Insurance Company ( hereafter

“Allstate”). Allstate ultimately entered into a settlement agreement with plaintiff and

pursuant thereto issued not one but two consecutive settlem ent checks to plaintiff.

Because the son of the deceased wife incorrectly filed a wrongful death action on his

own behalf, plaintiff w as prevented from consummating the settlem ent agreem ent with

Allstate. Some three years after plaintiff’s suit had been filed, defendants filed a

motion to dismiss on the grounds that plaintiff had failed to comply with Rules 3 and 4

T.R.C.P. in that defendants had not been served with process, nor had an alias summons

been issued, nor had the action been recommenced within one year of the date of the

issuance of the original process, thus plaintiff’s claim was barred by the one year statute

of limitations. The trial court granted the defendants’ motion to dismiss. The sole

issue presented by plaintiff on appeal is whether the trial court erred in so doing. W e

find that it did and reverse.
       The facts are really not in dispute. G oldie Jones was involved in automobile

accident with a vehicle driven by Dana A. Watson. She later died from injuries

received in that accident. Her husband, plaintiff herein, filed suit against Dana A.

Watson and her employer, Sheree Watson, seeking to recover damages for the wrongful

death of his wife. The vehicle being driven by Dana W atson was registered in Sheree

Watson’s nam e. This vehicle was insured by Allstate. After plaintiff learned that his

wife was on or about her employer’s business at the time of the accident, he also filed a

worker’s compensation death claim against General Accident Insurance Company of

Am erica (“General Accident”), defendant Sheree Watson’s worker’s compensation

carrier.


       General Accident accepted the deceased wife’s claim as a compensable one, and

paid all medical expenses. General Accident at that time refused to pay compensation

death benefits on the ground that plaintiff was not a dependent. Later, in September

1991, plaintiff ascertained that defendants had no other assets out of which a wrongful

death claim could be satisfied and agreed to settle with Allstate for the policy limits of

twenty-five thousand dollars ($25,000.00). In that same month Allstate issued the first

of two settlem ent checks in the amount of twenty-five thousand dollars ($25,000.00) to

plaintiff with the notation “Final Settlement of Any and All Bodily Injury Claims

Arising From Accident on 8/6/91."


       Shortly thereafter, General Accident advised plaintiff that they would be

defending the worker’s com pensation death claim brought by plaintiff and that plaintiff

should refrain from compromising any claim that plaintiff might have against

defendants that could affect General Accident’s right of subrogation. Because of this,

plaintiff was prevented from giving Allstate a complete release regarding the accident

claim. As of this time General Accident had not ascertained that defendants were, in

effect, “judgment proof”, and did not have any assets from which General Accident

might seek reim bursement for any funds paid by it to plaintiff as a result of this

accident.



                                             2
       In addition, General Accident was contesting plaintiff’s suit against it wherein he

sought w orker’s com pensation death benefits. In that contested litigation, the trial court

found that plaintiff was indeed a dependent of wife and was entitled to thirty-five

dollars and ninety one cents ($35.91) per week for four hundred weeks. In the worker’s

compensation case, plaintiff appealed to the Supreme Court the issue of whether the

trial court erred in limiting his benefits to only four hundred weeks. During the course

of this litigation, General Accident repeatedly advised counsel for plaintiff that plaintiff

should not compromise any possible subrogation claim that it, General Accident, might

have against Allstate. As a result plaintiff was further precluded from executing

settlement papers with Allstate concerning its offer.


       In M ay 1992, inasmuch as the original check given plaintiff by Allstate in

settlement of plaintiff’s claim had not been negotiated prior to its date of expiration,

Allstate issued a second check, also with a maturity date of six months, to plaintiff for

its policy limits of twenty-five thousand dollars ($25,000.00). W e will have more to

say about this later.


       Thereafter, our Suprem e Court reversed the trial court in the w orker’s

com pensation proceeding, and held that plaintiff was entitled to the maxim um benefits

of one hundred seventeen thousand, six hundred dollars ($117,600.00), and was not

limited to a four hundred week com pensation period. (See Jones v. General Accident

Ins. Co. of America, 856 S.W.2d 133 (Tenn. 1993)). Upon reaching the conclusion that

defendants had few if any assets upon which General Accident might levy an execution,

General Accident advised plaintiff that he could proceed and finalize his settlement

with Allstate, including the execution of any releases.


       The previously filed wrongful death action filed by the deceased wife’s son

(hereafter “Polk”) had placed Allstate in a predicament as to whether to pay plaintiff or

Polk. Notwithstanding the fact that in M ay 1992 Allstate had issued its second check to

plaintiff in an effort to settle this wrongful death claim, in Novem ber 1992, Allstate

wrote letters to the attorneys representing plaintiff, Polk and General A ccident,


                                             3
whereby it proposed to pay the twenty-five thousand dollars ($25,000.00) into court in

exchange for a full release from all three parties. This move was unsuccessful.


       Sometime thereafter, Allstate filed its motion for summary judgment against

Polk and a m otion to dism iss against plaintiff in order to bring this matter to closure.

The trial court treated A llstate’s motion against plaintiff as a motion for sum mary

judgment which was subsequently granted.


       Defendant contends that plaintiff failed to comply with the provisions of Rule 3

T.R.C.P., specifically as it pertains to the issuance of new process in a timely manner,

after it had been determined that there was no service of original process, and having

failed to do so resulted in plaintiff’s claim being barred by the statute of limitations.

The provisions of Rule 3 as it existed at the time this action was filed is as follows:


       All civil actions are commenced by filing a complaint with the Court. An
       action is commenced within the meaning of any statute of limitations
       upon such a filing of a complaint, whether process be returned served or
       unserved; but if the process is not served or not returned within 30 days
       from issuance, regardless of the reason, plaintiff, if he wishes to rely upon
       the original comm encement as a bar to the running of the statute of
       limitations, must either prosecute and continue the action by applying for
       or obtaining issuance of new process from time to time, each new process
       to be obtained within six months from issuance of the previous one, or
       plaintiff must recommence the action within one year from the issuance of
       the initial process not served or not returned within 30 days from
       issuance.


       The record reflects that plaintiff’s wife was injured in the autom obile accident in

question on August 6, 1991 and died from the injuries sustained therein some four days

later. Following employm ent by plaintiff in that sam e month, counsel for plaintiff

began negotiations with Allstate, defendant’s insurer, in late August, 1991. At that

time, Allstate furnished plaintiff’s counsel with a copy of the defendant’s policy

declaration w ith Allstate showing coverage in the amount of $25,000. In late

September 1991, plaintiff and Allstate agreed to settle the wrongful death action for

Allstate’s policy limits of $25,000. Allstate issued a check to plaintiff and his counsel

dated September 30, 1991 in the amount of $25,000, that stated on its face: “In Payment

of Final Settlement of Any and All Bodily Injury Claims Arising From Accident on



                                              4
8/6/91.” This check also provided on its face that it was void if not presented within

one hundred eighty days of the date of issuance.


         On A pril 22, 1992 A llstate issued another check for $25,000 payable to plaintiff

and his counsel. The purpose of issuing this check contained on its face the same

language as the earlier check of September, 1991. During this same period, General

Accident continued to refuse to release defendants and Allstate on its subrogation

claim.


         On July 27, 1992 Allstate, on its fax stationery, sent plaintiff’s counsel a

message regarding the “Goldie Jones” claim, from “Vickie Harris, Allstate Claims.”

The m essage read as follows:


         “George, This note confirms that Goldie Jones claim was settled for
         bodily injury in the am t of $25,000.00. The check was written on 4/22/92.
         It is good until 10/22/92. If you need it reissued after that date, let me
         know. (s)Vickie Harris”


         Two days later, on July 29, 1992, within one year of the date of the fatal

accident, plaintiff’s counsel filed a wrongful death action on behalf of plaintiff against

defendants Watson. Process was issued that same date for Sheree Watson. It was

returned by the Sheriff’s Department of Shelby County “not found” on August 20,

1992. There is nothing in the record to indicate that an alias summons was issued

thereafter.


         In Sparks v. M etro Government of N ashville and Davidson County , 771 S.W.2d

430 (Tenn. App. 1989), and relied upon by defendants, this court discussed the

applicability of the doctrine of equitable estoppel when applied to the statute of

limitations. The court therein stated:


         Where by promises or appearances one party is induced to believe that the
         other party is going to pay a claim or otherwise satisfy the claims of the
         first party, and in reliance on that representation the first party delays
         filing suit within the applicable statute of limitations, the party making the
         representations may be estopped to raise the statute of limitations as a
         defense. Id. at 433.

                                             ****

                                               5
       The doctrine [of equitable estoppel] is, of course, most clearly applicable
       where the aggrieved parties’ delay in bringing suit was caused by his
       opponent’s intentional misrepresentation; but deceit is not an essential
       elem ent of estoppel. It is sufficient that the aggrieved party reasonably
       relied on the words and conduct of the person to be estopped in allowing
       the limitations period to expire. Id. at 433. Quoting City of Bedford v.
       James Leffel & Co., 558 F.2d 216, 218 (4th Cir. 1977).


       In Sparks, the court found that an essential element, that of reliance, was

missing, noting that plaintiff had rejected multiple offers m ade by defendant to

complete the repair work done on plaintiff’s house. The court stated: “We are of the

opinion that [plaintiff] cannot reject an offer of completion of the contract and then say

that she relied on that promise to her detriment.”


       In the case under consideration the facts are substantially different. This record

clearly demonstrates that Allstate issued its check to plaintiff and his counsel for the

full amount of its policy limits with its insured defendant indicating thereon that it was

in full payment of G oldie Jones’ claim against the Allstate insured as a result of this

accident. Such a check was issued not once, but twice. In addition, an Allstate claim s

representative confirmed by letter not that negotiations were continuing, but that a

settlem ent had in fact been made and in addition thereto, offered to reissue the check in

the future should the then current check not be negotiated prior to the deadline stated

thereon. There is nothing in this record in the way of affidavits or otherwise on the part

of Allstate indicating that settlement negotiations were still ongoing.


       It appears to this court that almost four years after the initial settlement check

was issued by Allstate, it sought to play the game of “G otcha”, in filing and pursuing to

conclusion its motion to dismiss. We are of the opinion that defendants under these

facts are equitably estopped from asserting that plaintiff’s cause of action is barred by

the applicable statute of limitations for failure to comply with the provisions of Rules 3

and 4 T.R.C.P..


       Accordingly, the judgment of the trial court dismissing plaintiff’s cause of action

against defendants is reversed. This cause is remanded to the Circuit Court of Shelby

County for further proceedings not inconsistent with this opinion. Costs on appeal are


                                             6
taxed to defendants, for which execution may issue if necessary.



                                        _________________________________________
                                        TOMLIN, Sr. J.



                                        _________________________________________
                                        CRAWFORD, P. J.         (CONCURS)



                                        _________________________________________
                                        HIGHERS, J.             (CONCURS)




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