                                                                                                  03/07/2019
                    IN THE COURT OF APPEALS OF TENNESSEE
                                AT NASHVILLE
                                      December 5, 2018 Session

                DANIEL FULTS v. METLIFE AUTO & HOME INSURANCE
                                AGENCY, INC.

                      Appeal from the Circuit Court for Franklin County
                     No. 2017-CV-167          Thomas W. Graham, Judge
                           ___________________________________

                                 No. M2018-00647-COA-R3-CV
                             ___________________________________

In this action to recover for personal injuries suffered in a hit-and-run accident, the trial
court held that the suit was barred by the one year statute of limitations and dismissed it.
Plaintiff appeals; we affirm the judgment of the trial court.

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

RICHARD H. DINKINS, J., delivered the opinion of the court, in which ANDY D. BENNETT
and W. NEAL MCBRAYER, JJ., joined.

Clifton N. Miller and Erica R. Marino, Tullahoma, Tennessee, for the appellant, Daniel
Fults.

David L. Franklin, Chattanooga, Tennessee, for the appellee, MetLife Auto & Home
Insurance Agency, Inc.

                                    MEMORANDUM OPINION1

                              I. FACTUAL AND PROCEDURAL HISTORY

       Daniel Fults was injured in an accident with a hit-and-run driver on November 16,
2015, in Franklin County, Tennessee; as a result of the accident, Mr. Fults was injured,
1
    Rule 10 of the Rules of the Court of Appeals states:

          This Court, with the concurrence of all judges participating in the case, may affirm,
          reverse or modify the actions of the trial court by memorandum opinion when a formal
          opinion would have no precedential value. When a case is decided by memorandum
          opinion it shall be designated “MEMORANDUM OPINION,” shall not be published, and
          shall not be cited or relied on for any reason in any unrelated case.
and required extensive medical treatment. The other driver has not been identified. Mr.
Fults filed suit on July 14, 2017, naming his insurance carrier, MetLife Auto & Home
Insurance Agency (“MetLife”), as defendant and seeking to recover under the uninsured
and underinsured coverage of his policy.

       MetLife moved to dismiss the suit pursuant to Rule 12.02(6) of the Rules of
Tennessee Civil Procedure on the grounds that the complaint did not name or contain
allegations against a “John Doe” driver, that no summons had been issued against “John
Doe” as required by Tennessee Code Annotated section 56-7-1206(b), and that the statute
of limitations at Tennessee Code Annotated section 28-3-104 would prevent John Doe
from being named as a defendant. Mr. Fults thereafter moved to amend the complaint to
add John Doe as a defendant and to insert the name “John Doe” in the allegation in that
“[t]he vehicle, operated by [an unknown driver] violently impacted the Fults’ vehicle,
causing total damage to the vehicle and Fults.”

        The trial court granted the motion to dismiss, holding that suit was instituted more
than a year after the accident; that it did not name John Doe as a defendant, but only
MetLife; and that the statute of limitations for personal injury claims expired on
November 16, 2016, and that the suit was consequently barred by the one year statute of
limitations at Tennessee Code Annotated section 28-3-104. Mr. Fults appeals, raising the
following issue: “Whether the six-year statute of limitations under Tenn. Code Ann. § 28-
3-109 applies when an insured brings a lawsuit against his/her insurer under Tenn. Code
Ann. § 56-7-1201 et seq.”

                                II. STANDARD OF REVIEW

        In considering an appeal from a trial court’s dismissal of a complaint pursuant to
Rule 12.02(6) of the Tennessee Rules of Civil Procedure, this Court takes all allegations
of fact in the complaint as true, and reviews the trial court’s legal conclusions de novo
with no presumption of correctness. Tenn. R. App. P. 13(d); Owens v. Truckstops of
America, 915 S.W.2d 420, 424 (Tenn. 1996). Determining the applicable statute of
limitations is an issue of law that we review de novo. Gunter v. Lab. Corp. of Am., 121
S.W.3d 636, 638 (Tenn. 2003).

                                      III. ANALYSIS

       This action is governed by the one-year statute of limitations set forth in
Tennessee Code Annotated section 28-3-104(a). Because an unknown driver caused the
injury to Mr. Fults, section 56-7-1206(b) applies, which provides:

               If the owner or operator of any motor vehicle that causes bodily
       injury or property damage to a person insured under this part is unknown
       and if the insured satisfies all of the requirements of § 56-7-1201(e), should
                                                2
       suit be instituted, the insured shall issue a John Doe warrant against the
       unknown owner or operator in order to come within the coverage of the
       owner's uninsured motorist policy. If the uninsured motorist’s identity and
       whereabouts are discovered during the pendency of the proceeding,
       subsection (e) shall govern the proper course of action following the
       discovery.

(Emphasis added.)

        Plaintiff argues that the holding in Bates v. Greene, No. W2016-01868-COA-R3-
CV, 2017 WL 3206599 (Tenn. Ct. App. July 27, 2017), applies in this case and would
allow his suit to survive MetLife’s motion to dismiss; we do not agree. In Bates, the
plaintiff was injured in an automobile accident and sued the driver, whose identity was
known, within one year of the accident. Id. at *1. When the defendant was not served
because he was unable to be found, the plaintiff added her uninsured motorist insurance
carrier as a defendant and served the carrier two years after the accident. Id. The trial
court granted the carrier’s motion for summary judgment, holding that the action was
barred by the one year statute of limitations. Id. On appeal, this Court reversed the trial
court’s decision, holding that the failure to serve process on the carrier within one year of
the accident was not fatal to plaintiff’s claim because the suit was timely filed against the
uninsured motorist. Id. at *6-7. In reaching the decision, the Bates Court followed the
decision of this Court in Buck v. Scalf:

       In accordance with Tenn. Code Ann. § 56-7-1206 it is incumbent that suit
       be instituted against an uninsured motorist with service thereafter upon the
       insured’s uninsured motorist carrier. See Hooper v. State Farm Mut. Auto.
       Ins. Co., 682 S.W.2d 505, 507 (Tenn. [Ct.] App. 1984). We find no
       provision in Tenn. Code Ann. § 56-7-1206(a) which requires that a claim
       by an insured must be served upon an uninsured motorist carrier within one
       year from the date of a motor vehicle accident so long as the statute of
       limitations has not run against the uninsured motorist.

Id. at *6 (quoting Buck, No. M2002-00620-COA-R3-CV, 2003 WL 21170328, at *2
(Tenn. Ct. App. May 20, 2003) (emphasis added)). The Buck court went on to observe,
“where the statute of limitations has run against an uninsured motorist, a direct action
cannot be maintained against the plaintiff’s uninsured motorist carrier.” 2003 WL
21170328, at *4.

       Unlike the situation in Bates, Mr. Fults did not file his initial complaint within one
year of the date of the accident; moreover, he did not name “John Doe” as a defendant, as
required by the section 56-7-1206(b). Inasmuch as the initial complaint was barred by
the statute of limitations, the amendment, which added John Doe as a defendant, was
likewise barred and, therefore, futile. See Lane v. Montgomery, No. E2006-01643-COA-
                                             3
R3-CV, 2007 WL 1860903, at *4-5 (Tenn. Ct. App. June 28, 2007); Gafford v.
Caruthers, No. 91C-2709, 1994 WL 420917 at *2 (Tenn. Ct. App. Aug. 12, 1994).

     Accordingly, we affirm the dismissal of the complaint.




                                             RICHARD H. DINKINS, JUDGE




                                         4
