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Estate of Kirk v. Lowe9/28/2001
The Plaintiffs in this case sued "John Doe," an unknown driver, for injuries and damages resulting from the death of Plaintiffs' decedent. Process was served on decedent's uninsured motorist insurance carrier pursuant to Tennessee's Uninsured Motor Vehicle Coverage statutes. More than one year after the accident, the identity of the "John Doe" was discovered and Plaintiffs filed an amended complaint, naming him as Defendant. The Defendant moved for summary judgment on the basis that he was never an uninsured motorist, but at all pertinent times was insured, and that the one-year statute of limitations had expired. The trial court denied the motion, and we reverse.
Tenn. R. App. P. 9 Interlocutory Appeal; Judgment of the Circuit Court Reversed; and Remanded
David R. Farmer, J., delivered the opinion of the court, in which W. Frank Crawford, P.J., W.S., and Alan E. Highers, J., joined.
OPINION
Following the death of James Wendell Kirk, suit was brought by the administrator of his estate and his widow against "John Doe," an unknown driver, for injuries and damages from a vehicular accident which resulted in Mr. Kirk's death. The complaint alleges that, on or about September 4, 1998, Mr. Kirk was operating his truck in a southerly direction, traveling behind the John Doe vehicle, when the John Doe vehicle came to a sudden stop. Plaintiffs allege that Mr. Kirk took evasive action to avoid a collision with the other vehicle, and that said maneuver caused the truck which Mr. Kirk was operating to collide with a ditch and embankment. Process was properly caused to be served on Mr. Kirk's uninsured motorist carrier, Northland Insurance Company, pursuant to Tenn. Code Ann. § 56-7-1206(a). The identity of "John Doe" was subsequently discovered to be James Lowe. Northland then moved to dismiss on the grounds that it had been served as the uninsured motorist carrier because the accident was caused by an unknown tortfeasor, that "John Doe" had been identified as James Lowe, and that James Lowe was in fact insured.
On September 27, 1999, Kirk filed a Motion Requesting Permission to Amend Complaint to add James Lowe as a party defendant. The Amended Complaint deleting "John Doe" and substituting James Lowe was filed on October 21, 1999. An Order of Voluntary Non-suit dismissing Northland was filed on November 3, 1999.
Mr. Lowe filed a Motion for Summary Judgment on March 7, 2000. In support of the motion, Mr. Lowe submitted that Tenn. Code Ann. § 56-7- 1206(e) governs only uninsured motorists and therefore was not applicable in this case, because it is undisputed that Mr. Lowe was, in fact, insured at the time of the accident. This motion was denied on June 27, 2000. In denying summary judgment, the trial court found that Tenn. Code Ann. § 56-7-1206(e) was applicable to this case, that the action was not therefore time-barred, and that the distinction between a later identified "John Doe" who was insured as opposed to uninsured was an artificial one. The trial court granted Mr. Lowe's application for a Tenn. R. Civ. P. 9 Interlocutory Appeal, noting that if this Court found that Tenn. Code Ann. § 56-7-1206 (b) and (e) did not apply to this case, Mr. Kirk's action would be time-barred and summary judgment appropriate. This Court granted Mr. Lowe's application for a Rule 9 Interlocutory Appeal.
It is clear from this record that Mr. Kirk's Amended Complaint was not filed within the one-year statutory period provided for in Tenn. Code Ann. § 28-3-104(a)(1). Further, Mr. Kirk agrees that Tenn. R. Civ. P. 15.03 regarding the relation back of amendments is not applicable in this case. Mr. Kirk argues, however, that the provisions of Tenn. Code An
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