If you have a Maryville or Knoxville personal injury case, you are encouraged to speak with an experienced personal injury attorney who understands the methods, practices, and procedures of the civil court system. It can be unfortunate to have your personal injury case dropped or encumbered by a technical error.
Recently, in Fair v. Cochran, the Supreme Court of Tennessee ruled whether service of process without proof of service would preclude a plaintiff from using commencement of a lawsuit to satisfy the statute of limitations. Service of process ensures that all parties have been timely notified of a lawsuit. In Fair v. Cochran, the plaintiff, Ms. Fair, brought a personal injury lawsuit against the defendant, Mr. Cochran, claiming negligent operation of a vehicle causing a motor vehicle accident in August 2009. The plaintiff filed her complaint in Knox County in December 2009 within plenty of time for the one-year statute of limitations. The plaintiff hired a process server who claims the defendant was served process at the defendant’s residence in December 2009. However, the process server inadvertently failed to notify the court with a proof of service. Proof of service was not filed until January 2011.
In January 2011, the defendant requested that the lawsuit be dismissed since he claimed he had never been served process, and the one-year statute of limitations for the claim had passed. The trial court dismissed the case, and a Tennessee Appellate court affirmed, stating that Tennessee Rule of Civil Procedure 4.03 required the return of proof of service within ninety days of the summons. They held that the failure to give proof of service precluded the plaintiff from using the commencement of the lawsuit, filed in December 2009, to satisfy the statute of limitations.
The Supreme Court of Tennessee disagreed, noting that Rule 4.03(a) mandates service of process within 90 days; however, no language in Rule 4.03(a) indicates that a failure of proof of service would render commencement ineffective.
“The person serving the summons shall promptly make proof of service to the court and shall identify the person served and shall describe the manner of service. If a summons is not served within 90 days after its issuance, it shall be returned stating the reasons for failure to serve. The plaintiff may obtain new summonses from time to time, as provided in Rule 3, if any prior summons has been returned unserved or if any prior summons has not been served within 90 days of issuance [emphasis added].”
Furthermore, Rule 3 does not indicate that prompt proof of service is required to render a complaint effective for reasons of tolling the statute of limitations. Under Rule 3, only failure of service of process prevents the plaintiff from using the commencement date to toll the statute of limitations:
“All civil actions are commenced by filing a complaint with the clerk of the court. An action is commenced within the meaning of any statute of limitations upon such filing of a complaint, whether process be issued or not issued and whether process be returned served or unserved. If process remains unissued for 90 days or is not served within 90 days from issuance, regardless of the reason, the plaintiff cannot rely upon the original commencement to toll the running of a statute of limitations unless the plaintiff continues the action by obtaining issuance of new process within one year from issuance of the previous process or, if no process is issued, within one year of the filing of the complaint [emphasis and underline added].”
The court held that failure to file a proof of service does not prevent a plaintiff from using the commencement date to satisfy the statute of limitations. Proof of service may be used to prove service of process. The case was remanded back to the trial court to determine whether the process server actually served the defendant.
While the decision gives some leeway to plaintiffs, it also outlines the need to have an attorney who understand the rules of the courts. Both failure of service of process or missing the statute of limitations can end up getting your case dismissed. If you have been the victim of a personal injury, it is important to have a competent attorney that protects your rights so that your injuries will be compensated.
If you have been the victim of personal injury, contact Hartsoe Law Firm, P.C. at (865) 524-5657.
Fair v. Cochran, Jan. 3, 2013, The Supreme Court of Tennessee at Knoxville
Service of Process, The Free Legal Dictionary
More Blog Entries:
Tennessee Court of Appeals at Knoxville Limits Expert Testimony in Medical Malpractice Case — Ike J. White, III v. David A. Beeks, M.D., Dec 11, 2013, Knoxville Injury Lawyer Blog
Tennessee Supreme Court Rules Bus Accident Victim May Pursue Injury Claim Appeal, May 15, 2013, Knoxville Injury Lawyer Blog