Day on Torts
Where a car accident plaintiff filed suit, had service issued but not served, and then failed to have new process issued within one year from the issuance of the first service, the plaintiff could not rely on the fact that defendant received a traffic citation in the accident to extend the time within which service was required to be issued.
In Briars v. Irving, No. W2022-01159-COA-R3-CV (Tenn. Ct. App. Sept. 22, 2023), plaintiff and defendant were involved in a car accident, and defendant was given a citation for crossing the center line of the roadway. Plaintiff filed suit within the one-year statute of limitations and had service issued on July 2, 2020, but that summons was not served. A new summons for defendant was not issued until September 3, 2021. After being served, defendant moved to dismiss, which the trial court granted and the Court of Appeals affirmed.
Tenn. R. Civ. P. 3 states that when process is issued but not served, a plaintiff must “continue the action by obtaining issuance of new process within one year from issuance of the previous process.” Here, plaintiff did not have the new process issued until well beyond one-year after the first, unserved process was issued.
Plaintiff argued that since defendant received a traffic citation, Tenn. Code Ann. § 28-3-104(a)(2)(A) should apply to extend the time during which service could be issued. While that statute does extend the statute of limitations for personal injury claims where “criminal charges are brought against any person alleged to have caused or contributed to the injury,” the Court rejected plaintiff’s argument that the statute should be read to modify Rule 3’s service requirements. The Court ruled that since plaintiff “waited too long to obtain issuance of new process after failing to obtain service on [defendant],” dismissal was affirmed.
This opinion was released 1.5 months after the case was assigned on briefs.
Note: Chapter 81, Section 25 of Day on Torts: Leading Cases in Tennessee Tort Law has been updated to include this decision.
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