                IN THE COURT OF APPEALS OF TENNESSEE
                           AT KNOXVILLE
                                January 30, 2012 Session

                  OSCAR H. VAUGHN v. JAMES D. MORTON

                  Appeal from the Circuit Court for Hamilton County
                      No. 10C785      L. Marie Williams, Judge


               No. E2011-00719-COA-R3-CV-FILED-MARCH 28, 2012


This is a personal injury action filed by Oscar H. Vaughn (“the Plaintiff”) against James D.
Morton (“the Deceased”) that arose out of an automobile accident. The Deceased died
within a year of the accident. The Deceased’s insurer, acting pursuant to its rights under the
policy to “defend” an action against its insured, filed a motion to dismiss asserting that the
only proper defendant was the personal representative of the Deceased and that the statute
of limitations had expired prior to any attempt to make the representative a party to this
litigation. The trial court denied the Plaintiff’s motion to amend to add the personal
representative as a defendant, which motion was filed after the expiration of the statute of
limitations. The trial court granted the insurer’s motion to dismiss. The Plaintiff appeals.
We affirm.

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

C HARLES D. S USANO, J R., J.,delivered the opinion of the Court, in which H ERSCHEL P.
F RANKS, P.J., and D. M ICHAEL S WINEY, J., joined.

John C. Cavett, Jr., Chattanooga, Tennessee, for the appellant, Oscar H. Vaughn.

F. R. (Rick) Evans, Chattanooga, Tennessee, for the appellee, James D. Morton, Deceased.

                                         OPINION

                                              I.

        The accident occurred on July 2, 2009. The Deceased died on April 23, 2010. The
Plaintiff filed his complaint on June 18, 2010, naming the Deceased as the sole defendant.
According to the complaint, the Deceased’s negligent operation of his vehicle caused the
accident that injured the Plaintiff. When the Plaintiff learned of the Deceased’s death, he
filed an application in chancery court seeking to have Hilary Hodgkins appointed as
administrator ad litem of the Deceased’s estate pursuant to Tenn. Code Ann. § 30-1-109
(2007).1 The appointment was made and on October 13, 2010, “letters of limited
administration for a legal cause of action only” were issued. On November 8, 2010, the
administrator ad litem sent a letter to the Deceased’s insurer advising “that service of process
has occurred.” There was no immediate attempt by the Plaintiff to amend his complaint to
make the administrator ad litem a party to this litigation.

        On or about January 23, 2011, the Deceased’s insurer, acting “for and in behalf of . . .
James D. Morton” pursuant to a provision in the policy which gives the insurer the right to
“defend an insured,” filed a motion to dismiss asserting that the statute of limitations had
expired. The motion further asserted (1) that Tenn. Code Ann. § 20-5-103 provides the sole
means for maintaining an action against a person who dies before the action is filed; (2) that
the statute “must be strictly followed;” and (3) that “any action preserved by the statute ‘may
only be instituted against the personal representative of the tort-feasor [sic].’ ” The motion

       1
           The statute provides:

                  (a) In all proceedings in the probate or chancery courts, or any other court
                  having chancery jurisdiction, where the estate of a deceased person must
                  be represented, and there is no executor or administrator of the estate, or
                  the executor or administrator of the estate is interested adversely to the
                  estate, it shall be the duty of the judge or chancellor of the court, in which
                  the proceeding is had, to appoint an administrator ad litem of the estate for
                  the particular proceeding, and without requiring a bond of the administrator
                  ad litem, except in a case where it becomes necessary for the administrator
                  ad litem to take control and custody of property or assets of the intestate’s
                  estate, when the administrator ad litem shall execute a bond, with good
                  security, as other administrators are required to give, in such amounts as the
                  chancellor or judge may order, before taking control and custody of the
                  property or assets.

                  (b) This appointment shall be made whenever the facts rendering it
                  necessary appear in the record of such a case, or shall be made known to
                  the court by the affidavit of any person interested in the case; and, in such
                  proceedings in the chancery court, the chancellor at chambers or clerk and
                  master of the court on a rule day shall have authority to make an
                  appointment in vacation.




                                                       -2-
asserted that the action filed against the Deceased did not “commence” an action against the
proper party for purposes of the statute of limitations. The motion cites Bryant v. Estate of
Klein, No. M2008-01546-COA-R9-CV, 2009 WL 1065936 (Tenn. Ct. App. M.S., filed April
20, 2009) as being “directly on point.”

       On February 4, 2011, some 19 months after the accident, the Plaintiff filed a motion
to amend the complaint “to substitute Hilary Hodgkins, Administrator Ad Litem, for James
D. Morton as the defendant in this case.” In opposition to the motion to dismiss, the Plaintiff
asserted, inter alia, that the requirements of Tenn. R. Civ. P. 15.03 were met for relation back
of the proposed amendment to the date of filing of the original complaint. Therefore,
according to the Plaintiff, the complaint was filed within the statute of limitations.

     The trial court ruled on the two pending motions in a memorandum and order entered
on March 11, 2011.2 In pertinent part, the order states:

                In Tennessee, when a party who has committed a tortious or
                wrongful act, and then dies, suit may be brought to recover for
                damages but specific steps must be followed. Tennessee Code
                Annotated § 20-5-103 provides that the cause of action will not
                abate upon death, but as the Tennessee Supreme Court has
                explained, the steps outlined by the statute “must be strictly
                followed.” Brooks v. Garner, 254 S.W.2d 736, 737 (Tenn.
                1953). The statute and the cases interpreting this statute require
                that the suit be instituted against the personal representative of
                the tortfeasor. See Tenn. Code Ann. § 20-5-103 (stating “cause
                of action shall survive and may be prosecuted against the
                personal representative of the tortfeasor or wrongdoer”). The
                statute of limitations for the original action will toll for the
                period of time between death and the appointment of the
                personal representative, up to six months following death.
                Tenn. Code Ann. § 28-1-110; see also Bryant v. Estate of Klein,
                No. M2008-01546-COA-R9-CV, 2009 WL 1065936 (Tenn. Ct.
                App. Apr. 20, 2009).

                In this case, the statute of limitations for personal injury is one
                year. Tenn. Code Ann. § 28-3-104. When [the Deceased] died
                on April 23, 2010, 295 days had elapsed, and 70 days remained


        2
          Out of concern that the memorandum opinion and order might not constitute a final judgment, the
court later entered an “Order of Dismissal” announcing a dismissal with prejudice and taxing costs.

                                                  -3-
before the statute expired. Upon death, the statute was tolled
until the expiration of six months, or the appointment of the
personal representative, whichever occurred first. The personal
representative was appointed on October 13, 2010, and
accordingly, the 70 remaining days began to run. This period
expired on December 22, 2010, and the personal representative
was never substituted.

The [P]laintiff did attempt to bring suit against [the Deceased]
on June 1[8], 2010, but as the record reflects, [the Deceased]
was deceased. Instead of reinstituting the action against his
personal representative, the Plaintiff in this case merely sent the
representative a copy of the original suit. The case of Bryant
provides a similar set of circumstances to the case at hand. 2009
WL 1065936. In Bryant, an action was commenced against a
party who was deceased. The court held that the party was
improper since he was deceased at the time of filing. The
[p]laintiff attempted to substitute the “Estate of Henry Klein,”
but the court held that the “estate” was also an improper party
because the estate had not been opened. Id. at *3. The court
explained that to pursue their cause of action, “Plaintiffs were
required to institute their action against the personal
representative of Mr. Klein.” Id. at *3. See also, Carpenter v.
Johnson, 514 S.W.2d 868 (Tenn. 1974)(finding that statute has
the effect of tolling the statute of limitations up to six months,
and when administratrix was substituted within six days of
appointment and within remaining statutory time period, suit
was proper).

In the present case, the Plaintiff did not substitute the personal
representative for [the Deceased] before the date of December
22, 2010, the date of expiration for the statute of limitations. As
explained by the Court of Appeals in Bryant, such steps are
necessary in order to qualify as the commencement of an action.
Therefore, the Deceased’s Motion to Dismiss is GRANTED and
the Plaintiff’s Motion to Amend is DENIED.

[The] Plaintiff has also moved to amend pursuant to Tennessee
Rule of Civil Procedure 15 to name the Administrator ad litem
as the defendant. The Plaintiff contends that the amendment

                                -4-
              would relate back to the original filing of suit, on June 18, 2010,
              thereby making the suit timely filed. This argument fails
              because as shown in the case law cited above, such earlier
              filings were not effective. The statute has been strictly
              interpreted to require the personal representative to be added as
              a party before a suit can commence. The amendment would
              serve no purpose, because the statute of limitations expired
              before a proper party was substituted.

The Plaintiff appealed from the trial court’s order of dismissal.

                                               II.

       The issue, as stated verbatim from the Plaintiff’s brief, is as follows:

              Did the Court err in declining to allow the [Plaintiff] to amend
              his complaint to add the administrator ad litem as a party,
              following the death of the original defendant, where the
              [Plaintiff] did not know the original defendant was deceased at
              the time the suit was filed and where the administrator ad litem
              was appointed and served with process before the statute of
              limitations ran, all of which was known to the insurance
              company[?]

                                              III.

       A succinct reiteration of the standard for reviewing a trial court’s dismissal pursuant
to Tenn. R. Civ. P. 12.02 was recently provided in Harman v. University of Tennessee, 353
S.W.3d 734 (Tenn. 2011):

              In determining the sufficiency of a complaint, we must construe
              it in the plaintiff’s favor, by taking all factual allegations in the
              complaint as true and by giving the plaintiff the benefit of all the
              inferences that can be reasonably drawn from the pleaded facts.
              A trial court should grant a motion to dismiss only when it
              appears that the plaintiff can prove no set of facts in support of
              the claim that would entitle the plaintiff to relief. The
              determination of whether the facts, as set forth in the complaint,
              constitute a cause of action presents a question of law, and,



                                               -5-
              accordingly, our review is de novo with no presumption of
              correctness.

Id. at 736-37 (citations and internal quotation marks omitted).

                                              IV.

        The outcome of this case turns on whether Rule 15.03, upon which the Plaintiff relies,
saves the case from the expiration of the statute of limitations. More specifically, the question
is whether the motion to amend the complaint, filed after the expiration of the applicable
statute of limitations, to name the personal representative of the Deceased relates back to the
date of filing of the original complaint which named only the Deceased. As we have
previously stated, the Deceased died between the time of the alleged tort and the filing of the
original complaint.

       We begin by quoting Rule 15.03:

              Whenever the claim or defense asserted in amended pleadings
              arose out of the conduct, transaction, or occurrence set forth or
              attempted to be set forth in the original pleading, the amendment
              relates back to the date of the original pleading. An amendment
              changing the party or the naming of the party by or against
              whom a claim is asserted relates back if the foregoing provision
              is satisfied and if, within the period provided by law for
              commencing an action or within 120 days after commencement
              of the action, the party to be brought in by amendment (1) has
              received such notice of the institution of the action that the party
              will not be prejudiced in maintaining a defense on the merits,
              and (2) knew or should have known that, but for a mistake
              concerning the identity of the proper party, the action would
              have been brought against the party.

We also acknowledge the myriad cases holding that leave is to be “freely given” as justice
requires. See, e.g., Branch v. Warren, 527 S.W.2d 89, 92 (Tenn. 1975).

       The well-established policy of liberality in the granting of amendments to complaints
clearly raises the following question in this case: Does this principle control over the
statutory requirements applicable to the situation now before us? The answer to that question
begins with the pertinent language of Tenn. Code Ann. § 20-5-103 (2009):



                                               -6-
              (a) In all cases where a person commits a tortious or wrongful
              act causing injury or death to another, or property damage, and
              the person committing the wrongful act dies before suit is
              instituted to recover damages, the death of that person shall not
              abate any cause of action that the plaintiff would have otherwise
              had, but the cause of action shall survive and may be prosecuted
              against the personal representative of the tort-feasor [sic] or
              wrongdoer.

              (b) The common law rule abating such actions upon the death of
              the wrongdoer and before suit is commenced is abrogated.

        The statutory language is abundantly clear. The cause of action survives only against
“the personal representative of the tort-feasor [sic] or wrongdoer.” Id. At common law, no
cause of action existed against a deceased tortfeasor for personal injury. Brooks v. Garner,
254 S.W.2d 736, 737 (Tenn. 1953). The cause of action abated at the time of death. Id.
“Since the statute defines the exclusive remedy and the steps to be taken to secure it, those
steps must be strictly followed.” Id. The action available under the statute “may only be
instituted against the personal representative of the tort-feasor [sic].” Goss v. Hutchins, 751
S.W.2d 821, 824 (Tenn. 1988) (citing Brooks, 254 S.W.2d at 737). The law protects an
injured person from the possibility that no estate is opened for the tortfeasor by allowing the
injured person to petition the chancery court to appoint an administrator for the limited
purpose of serving as the defendant in the lawsuit. Tenn. Code Ann. § 30-1-109 (2007). It
is undisputed that the Plaintiff in this action had the administrator ad litem appointed and
served the administrator; but it is also undisputed that the Plaintiff took no action to amend
the complaint or to institute a separate action naming the administrator ad litem as the
defendant until after the expiration of the statute of limitations.

        The Plaintiff’s failure to “strictly follow” that last mandatory step of securing the
naming of the personal representative as the defendant before the expiration of the statute
of limitations is fatal to his action under our holding in Bryant. Although Tenn. R. Civ. P.
1503 was not specifically mentioned in Bryant, an issue dispositive of the application of Rule
15.03 was the focus of that case. The plaintiff in Bryant argued that his case was saved from
the expiration of the statute of limitations because, “while the [c]omplaint may have named
the wrong party defendant initially, the filing of the [c]omplaint nonetheless ‘commenced’
the action under Rule 3 of the Tennessee Rules of Civil Procedure for the purposes of the
statute of limitations.” 2009 WL 1065936 at *3. The argument was also made that since a
copy of the complaint was served on the deceased tortfeasor’s daughter, and copies of the
pleadings had been provided to the attorney for the estate, the proper party had notice of the
action. Id. at *4. It is also noteworthy that in Bryant, as in this action, counsel for the

                                              -7-
plaintiff had gone through the steps of having an administrator ad litem appointed and
provided a copy of the complaint but did not make any allegations that would support the
conclusion that he was the defendant. Id. at *1. We held that none of these facts were of any
consequence without something in the record before the expiration of the statute of
limitations showing that the personal representative was the intended party defendant;
therefore, “the filing of the [c]omplaint . . . did not ‘commence’ the action within the
meaning of Rule 3 and, consequently, the statute of limitations continued to run.” Id. at *
4. We believe, and so hold, that if a complaint does not commence an action within “the
meaning of Rule 3” it does not commence an action that a later amendment can “relate back
to” within the meaning of Rule 15.03.

        The Plaintiff discusses in his brief numerous cases decided under Tenn. R. Civ. P.
15.03, none of which involved an attempted amendment after the expiration of the statute of
limitations to substitute a personal representative of a deceased tortfeasor in place of the
deceased tortfeasor. One example that the Plaintiff asserts is “similar in many ways to the
case at hand” is Vincent v. CNA Insurance Co., No. M2001-02213-COA-R9-CV, 2002 WL
31863290 (Tenn. Ct. App. M.S., filed Dec. 23, 2002). In Vincent, we held that an amended
complaint naming an insured automobile driver related back pursuant to Tenn. R. Civ. P.
15.03 to a pro se action filed originally against the tortfeasor’s automobile insurer. Id. at *9.
There are numerous distinctions between the present case filed by counsel and Vincent,
involving a pro se litigant who had been assured by her opponent’s insurance company that
it “accepted financial responsibility for her damages.” Id. at *1. However, the compelling
and controlling distinction is that Vincent did not involve an attempt to amend to name a
personal representative pursuant to Tenn. Code Ann. § 20-5-103 in substitution of an earlier
complaint naming a deceased person. Notwithstanding the Plaintiff’s assertion that the
insurer in this case is the real party in interest, we must follow the cases holding that the only
proper defendant in a case that seeks to impose liability for the actions or omissions of a
deceased tortfeasor is the personal representative of the deceased tortfeasor.

                                               V.

       The judgment of the trial court is affirmed. Costs on appeal are taxed to the appellant,
Oscar H. Vaughn. This case is remanded, pursuant to applicable law, for collection of costs
assessed by the trial court.




                                                     _______________________________
                                                     CHARLES D. SUSANO, JR., JUDGE



                                               -8-
