# FILED Dec. 11, 1996 Cecil Crowson, Jr . Appellate Court Clerk IN THE COURT

OF APPEA LS OF TEN NESSEE WESTER N SECTION AT J ACKSON

______________________________________________________________________________ DARRYL JONES, as surviving Shelby Circuit No. 47678 T.D. next o f kin of

GOLDIE JONES, C.A. No. 02A0 1-9602-CV-0

0038 Deceased, Plaintiff, Hon. Robert L. Childers v. DANA A. WATSON a nd SHEREE WATSON, Defendan ts. ERICH W. JAMES and GEORGE E. SKOUTERIS, SR., Memphis, Attorneys for Plaintif f. JOHN D. RICHARDSON an d KEVIN COMBS, The Richa rdson Law F irm, Memphis, Att orneys for Def

endant s. REVERSED AND REMANDED Opinion filed:

______________________________________________________________________________ TOMLIN, Sr. J. Darryl Jone s (here after “Plaintiff

”) fi led sui t in the Circui t Court of Shelby Co unty again st Da na A . W atson and S heree W atson (herea fter “D efend ants”) to recover da mages for the wrongfuldeath of hi s wife, Goldie Jones , as a r esultof a motor vehicl e accident . Defendant s were insured by Allst ate Ins urance Company ( hereafter “Allst ate”) . Alls tate ulti mately enter ed into asettlement agreement with plaintiff and pur sua nt th ereto issu ed n ot o ne b ut tw o co nse cutiv e se ttlem ent c hec ks to plain tiff. Bec ause the so n of th e dec eased wife incorr ectly filed a w rong ful dea th actio n on his
ow n beh alf, plaintiff w as pre vente d from cons um m ating th e settlem ent ag reem ent w ith Allst ate. Some three years af ter pl ainti ff’s suithad been fi led, defendant s fil ed a motion to dis miss on the grounds that pl ainti ff had f aile d to comply with Rules 3 and 4 T.R.C.P. i n that de fendants had not been se rved with pr ocess, nor had an al ias summons been iss ued, nor had t

he acti on been recommenced within one year of the dat e of the issuan ce of th e origin al proc ess, thu s plaintiff’s claim wa s barre d by the on e yea r statute of lim itations. T he trial co urt gra nted th e defe ndan ts’ m otion to dism iss. Th e sole issu e pr ese nted by p laint iff on app eal is wh ethe r the trial c our t erre d in so d oin g. W e find that it

did and reve rse.2 The facts are really n ot in dis pute. G oldie Jo nes w as inv olved in auto m obile accident with a vehi cle dri ven by Dana A. W atson. She late r died f rom injuri es
re ce iv ed in th atac ci de nt . H erhus ba nd, pl ai nt if f h er ei n, fi le d s ui t a ga in stDan a A. W atson and her

employer, Shere e W atson, seeking t o recover da mages for the wrongful death of hi s wife. The vehicle being dri ven by Dana W atson was re gist ered in Sheree W atson ’s nam e. Th is veh icle w as insu red b y A llstate. A fter plain tiff learne d that h is wife was on or abouther employer’s business at the time of the accident , he al so fil ed a worker’s compensati on death cl aim againstGeneral Accident Insuranc e Company of Am erica(“General Accident”) , defenda nt Sheree Watson’s worker’s compensati on
carr ier.
General Accident

accepted the deceased wif e’s cl aim as a compensable one, and paid al l medical expe nses. General Accident at that ti me refused to pay compensation death benef

its on the ground that pla inti ff was not adependent. Later, in September 1991, pla inti ff asc ertai ned thatdefendant s had no otherasset s out of whic h a wrongful death cl aim could be satisfi ed and agreed t o settle with All stat e for the polic y limits of twenty-five thousand dollars ($25,000.00). In that same m onth Allstate i ssued the first of tw o settlem ent ch ecks in the a m oun t of tw enty-f ive tho usan d do llars ($2 5,000 .00) to pl ai nti ff wi t h the no t ati on “F i na l Se t t l em en t of An y a nd Al l Bo di l y I nj ury C l ai ms Ar ising Fro m Ac cide nt o n 8/ 6/9 1."
Shortl y therea fter , General Accident advi sed plai ntif f that they would be defending the wo rker’s com pensation d eath claim brough t by plaintiff and that plaintiff should refrain fr om com promising any claim that plaintiff might have against defendants that could affect General Accident’s right of subrogation. Because of thi s, plaintiff was prevented f

rom giving Alls tate a complete rel ease regarding the accident claim . As o f this tim e G enera l Acc ident h ad no t ascerta ined th at defe ndan ts we re, in effect , “j udgment proof”, a nd did not have any asset s from which General Accide nt
m ight see k reim burse m ent for any f und s paid by it to p laintiff as a result o f this
acc iden t.3 In addition, Genera l Accidentwas contesting plai ntif f’s s uit aga instit wherei n he sought w orker’s com pensation d eath bene fits. In that contested litigation, the trial court found that

plaintiff was indeed a dependent of wife and was entitl ed to thi rty- five dollars and n inety one c ents ($35.91 ) per we ek for four h undred week s. In the wo rker’s compensation cas e, pl ainti ff appeal ed to the Supreme Court the i ssue of whethe r the trialcourt erred in li miting his benefits t o only four hundred w eeks. During the course of this litigation, General A ccident repea tedly advised counse l for plaintiff that plaintiff should notcomprom ise any pos sibl e subrogation cla im that i t, Genera l Accident , might have agains t Alls tate . As a resul t plai ntif f was further precl uded from executi ng settle m ent p ape rs w ith A llstate con cern ing its of fer.
In M ay 19 92, ina sm uch a s the o riginal c heck given plaintiff b y A llstate in settlement of pl ainti ff’s clai m had not been negotia ted pri or to i ts dat e of expir ation, Allst ate i ssued a sec ond check, al so with a maturi ty date of six months, to plai ntif f for its policy limits o f twe nty-fiv e thou sand dollars ($25 ,000.0 0). W e w ill have m ore to say abo ut th is late r. Therea fter, our Suprem e Cou rt reversed the trial court in the w orker’s
com pens ation p rocee ding , and h eld tha t plaintiff w as en titled to the m axim um bene fits of one hundred s eventeen thousand, s ix hundred dol lars ($117,600. 00), and was not lim ited t o a f our hun dre d w eek com pen satio n pe riod . ( See Jones v. General Accident Ins. Co. of America , 856 S.W.2d 133 (Tenn. 1993) ). Upon reachi ng the concl usion that defendant s had few if

any asset s upon which General Acci dent might l evy an executi on, General Accident

advised pl ainti ff that he coul d proceed and f inali ze his s ettl ement with Allstate, including the execution of any releases. The previousl y fil ed wrongful death acti on fil ed by the decea sed wife’ s son (hereaf ter “Pol k”) had pla ced Allst ate i n a predic ament as to whetherto pay pla inti ff or Polk . No twiths tandin g the fa ct that in M ay 19 92 A llstate ha d issue d its sec ond chec k to plaintiff in an effo rt to settle th is wro ngfu l death claim , in No vem ber 1 992 , Allstate
wro te letters to th e attorn eys re prese nting p laintiff, Po lk and Ge neral A ccide nt,4

wh ereby it propo sed to pay th e twe nty-fiv e thou sand dollars ($25 ,000.0 0) into c ourt in
exc han ge f or a full re leas e fro m all th ree p artie s. Th is m ove wa s un suc ces sful.
Som etime thereafter, Allstate fi led its motion for summ ary judgmen t against Po lk an d a m otio n to dism iss ag ains t plai ntiff in ord er to brin g th is m atter to clo sure . The trial court treated A llstate’s motion ag ainst plaintiff as a m otion for sum m ary judgment which was subsequently granted.
Defendant cont ends that plaintiff fail ed to comply with the provis ions of Rul e 3 T.R.C .P., specifically as it pertains to the issuance o f new p rocess in a tim ely m anner, after it had be en determined that there was no ser vice of originalprocess, and having faile d to do s o re sulte d in plain tiff’s c laim bein g ba rred by t he s tatut e of lim itatio ns. The provisions of Rule 3 as it existed atthe time this acti on was filed is as foll ows: Allci vi l a ct io ns ar e c ommenc ed by f il in g a co mpl ai ntwith the Cou rt . A n acti on is commenced within the meaning of any statute of l imitations upon such a fi ling of

a complaint, whether proce ss be returned ser ved or unserved; but if

the proce ss is not served or not r eturned within 30 days from issuance , regardless of the rea son, pl ainti ff, if he wis hes to r ely upon the ori ginal c omm encement as a bar t o the runni ng of the s tatute of limitations , must either prose cute and continue the acti on by applying f or or obtaining issuance of new process from time to time, each new process to be obta ined withi n six months fr om issuance of the previous one, or plaintiff must recomm ence the ac tion within one yearfrom the is suance of the ini tialprocess not

served ornot returned withi n 30 days from issuanc e. The record reflects th at plain tiff’s wife wa s injure d in the autom obile a ccide nt in questi on on August 6, 1991 and di ed from the inj uries sustai ned there in some four days later. Following e m ploym ent by plaintiff in that sam e m onth, coun sel for plaintiff began negoti ations with Alls tate , defenda nt’s i nsurer, in late August, 1991. At that time, All stat e furni shed plai ntif f’s couns el with acopy of the de fendant’ s poli cy decla ration w ith A llstate sho win g cov erage in the a m oun t of $2 5,000 . In late September 1991, pl ainti ff and All stat e agreed t o settle the wrongful death acti on for Allst ate’s policy l imits of $25,000. All stat e issue d a check to pl ainti ff and hi s counsel dated Sept ember 30, 1991 in the amount of $25,000, that s tate d on its face: “In Payment of Final Settl ement of Any and All Bodily I njury Clai ms Arising From Accident on5

8/6/91 .” Th is chec k also prov ided o n its face that it w as vo id if not p resen ted w ithin
one hun dre d eig hty day s of th e da te of issu anc e. On A pril 22, 1992 A llstate issued another ch eck for $2 5,000 pa yable to plaintiff
an d h i s co un s el
. Th e p urpo s e o f i s s ui ng t hi s ch ec k c on t ai ne d o n i t s f ac e the s am e language as the ear lier

check of Sept ember, 1991. Duri ng this same period, Gener al Accident continued to refuse t o relea se defendant s and Allst ate on i ts subr ogation cl ai m. On July 2 7, 199 2 A llstate, on its f ax statio nery , sent pla intiff’s co unse l a message regardi ng the “Goldi e Jones” cl aim, from “Vickie Harris, Allst ate Clai ms.” The m essage read as follows: “George, This note confi rms that Goldi e Jones cl aim was settl ed for bod ily in jury in th e am t of $ 25,0 00.0 0. T he c hec k w as w ritten on 4 /22 /92
. It is goo d un til 10/22 /92. If yo u nee d it reissu ed afte r that da te, let m e know. (s)Vickie Harris” Two days later , on Jul y 29, 1992, within one yearof the date of the f atal accident, plai ntiff’ s counsel filed a wrongful death acti on on behalf of plaintiff against defendant s Watson. Process was issued that same date f or Sheree Watson. I t was returned by the Sheri ff’s Department of Shel by County “not found” on August 20, 1992. There i s nothi ng in the record to i ndicat e thatan ali as summ ons was issue d ther eafte r.
In Spa rks v. M etro G over nm ent of N ashv ille and Da vidso n C oun ty , 771 S.W.2d 430 (Tenn. App. 1989) , and rel ied upon by defe ndants, this court di scussed the applic abili ty of the doctri ne of equit able estoppel when appli ed to the statute of limitations . The court

therei n stat ed:
W here by promises or appeara nces one party is i nduced to bel ieve that the other party is going to pay aclai m or otherwise sa tis fy the cl aims of the fir st party, a nd in rel iance on that representation the f irst party del ays fil ing sui t withi n the appl icabl e statute of l imitations, the party making the representati ons m ay be estopped to raise the statute of limitati ons as a def ens e. Id. at 433.
****6 The doctrin e [of eq uitable estop pel] is, of c ourse , m ost clea rly app licable wh ere the aggr ieved parties’ d elay in bring ing su it was caus ed by his opponent’s intentional misr epresent ation; but decei t is not an ess entia l elem ent of e stopp el. It is sufficie nt that th e agg rieved party r easo nably reli ed on the words and conduc t of the person t o be estopped i n allowing the li m itatio ns p erio d to exp ire. Id. at 43 3. Quoting City of Bedfor d v. James Leffel & Co. , 558 F.2d 216, 218 (4th Cir. 1977 ).
In Sparks , the court f

ound that a n essential e lement, that of r elia nce, was
m issing, n oting th at plain tiff had re jected m ultiple o ffers m ade b y def enda nt to complete the r epair work done on pl ainti ff’s house. The court st ated: “W e are of the opinion that [pl ainti ff] c annot rej ect an of fer of completion of

the contract a nd then say that s he reli ed on thatpromise to herdetri ment.”
In the case u nder con sideration the facts are su bstantially different. This record clear ly demonstrat es that Allst ate i ssued it s check to pl ainti ff and hi s counsel for the full amount of its policy l imits with its insure d defendantindicating thereon tha t it was in full pa ym ent of G oldie Jo nes’ c laim again st the A llstate insu red as a resu lt of this accid ent. Su ch a c heck wa s issued not o nce, b ut tw ice. In a ddition , an A llstate claim s repres entativ e con firm ed by letter no t that ne gotiatio ns w ere co ntinuin g, but th at a settlem ent ha d in fac t been m ade a nd in additio n there to, offere d to reis sue th e che ck in the future shoul d the the n current check not be negotiate d priorto the de adline stat ed thereon. Th ere is nothing in this rec ord in the w ay of affidavits or o therwise o n the part of Allst ate i ndicating that settlement negoti ations were sti ll ongoi ng. It appears to this court that almost fouryears af

ter the initial s ettl ement check
wa s issued by A llstate, it soug ht to pla y the g am e of “G otcha ”, in filing a nd p ursuin g to conclusion its motion to dismiss. We are of the opinion that defendants under these facts are equi tably e stopped f rom asserti ng that pl ainti ff’s cause of ac tion i s barre d by the applicable st atute of li mitations for fail ure to comply w ith the provisi ons of Rules 3 and 4 T .R.C .P.. Accordingly, the judgment of the trial c ourt di smissing pl ainti ff’s cause of ac tion against defendant s is r eversed. This cause i s remanded to the Circuit Court of Shel by Cou nty for further pro ceedings n ot inconsistent w ith this opinion. Co sts on appe al are7

taxed t o defendant s, f

or which execution may issue i f necess ary.

_________________________________________ TOMLIN, Sr. J.

_________________________________________ CRAWFORD, P. J. (CONC URS)

_________________________________________ HIGHERS, J. (CONC URS)