### IN THE COURT OF APPEALS OF TENNESSEE AT JACKSON
TALMAGE CRUMP v. KIMBER LY BELL
A Direct Appeal from the Circuit Court for Shelby County No. 85116-6 The Honorable George H. Brown, Jr., Judge

No. W1999-00673-COA-R3-CV - Decided July 12, 2000

This is a personal injury case. Plaintiff filed a complaint and issued summons, which was returned “not to be found.” Plaintiff issued an alias summons which was also returned “no t to be found.” Plaintiff issued plu ries summons more th

an one yea

r after the retu

rn of the alias summ

ons. The trial court dismissed plaintiff’s case for failure to comply Rule 3, Tenn.R.Civ.P. Plaintiff

asserts that defendant is equitably estopped from rely ing upon Tenn.R.Civ.P. 3, because of action of defenda nt’s l iability insurance carrier leading him to believe that the defe nse would not be raised upon which he relied

to his detriment. The trial court found no estoppel, and plaintiff has appealed.
Tenn.R.App.P. 3, Appeal as of Right; Judgment of the Circuit Court Affirmed

C RAWFORD , P.J., W.S., delivered t he opinion of the c

ourt, in which H IGHERS , J., and L ILLARD , J., joined.
James T. Allison, Memphis, For Appellant
Craig Creighton Conley, Robert L. Moore, Memphis, For Appellee

OPINION
Plaintiff, Talmage Crump, a ppeals the order

of the trial court

dis missi ng his complaint against defen

dant, Kimberly

Bell.
Crump sustained personal injuries in an automobi le accident with Bell that occurred on February 14, 1996. Bell

carried liability insurance with State Farm Mutual Insura nce Comp any. In August, 1996, Crump

retained attorney

James T. Allison to represent him in his claim for personal injuries, and by lette

r dated August 12

, 1996, Allison infor

med Lynn

Jewel, an adjuster

for State Farm, that he represe

nted Crump. Because plaintiff was still undergoing treatment in the fall of 1996, Allison told Jewel that he needed to file a lawsuit against the defendant to stop the statute of limitations from running, a nd they ag

reed to continue t

o negoti ate without an answer being filed. Suit was filed on February 11, 1997, and the summons that was issued on that same d ate was returned, “not to be found” on February 12, 1997. An alias summons was issued on July 10, 1997 and was returned “not to be found” on July 23, 1997.-2-

The plaintiff was st

ill h aving difficult

y from his inju

ry in April, 1 997, and Allison wr ote Jewel requesting that she please have an answer filed so the case could

be moving toward a trial date, if necessary. Jewel

replied to Allison that she had not heard from her insured, and Allison checked withthe court clerk’s office and found that there had been a “not to be found return” on the or iginal summons, and that is when he filed the alias summons on July 12, 1997.

In September, 1997, Eva Myers, another State Farm adjuster, wrote A

llison to inform him that the case had b een assigned to her, and Allison se

nt plaintiff’s cur

rent medical expe

nses to Myers. On December 4, 1997, Allison sent Dr. D. J. Canale’s report to Myers and advised her that plaintiff had missed time

from work. The medica

l expenses at that tim

e were $3,631.00

, and lost wages amounted to $1,664.00. On behalf of the plaintiff, Allison offered to settl e the case for $20,000. 00, and Myers a dvised Allison that s

he needed the phy

sical therapist’ s notes to properly evaluate the claim. This information was sent to her on December 10, 1997. Several weeks later, Myers offered to settle the case for $11,739.00. Plaintiff declined the offer and made a counter-offer of $17,000.00. On January 31, 1998, State Farm indicated that it was willing to arbitrate the case, and Allison agreed to arbitration, selecting names of three arbi trators from t

he list sent to him by Myers. Nothing was hea rd from State

Farm for over two months, and when Allison called Myers in April, 1998, she said the file had been assigned to another adjuster, Alex Goeldner. Several weeks later, Goeldner advise

d Allison that befor

e he could arbit

rate he needed the orthopedic doctor’s notes. Those

notes were sent to

Goeldner by Allison on May 21, 1998. On June 30, 1998, Goeldner wrote Allison stating he

would not arbitrat

e the case, because he thought the original offer

to settle for $11,739.00 was adequate. Goeldner stated he was referring the case to attorney Rober t Moore to defend the lawsuit.
By letter dated June 29, 1998, Moore wrote Allison that he would be defending the case on behalf of Bell, but that he had not received a cla

im file, and he had

not verified ser

vice of process. Moore stated that

he would file a responsive pleading but requested Allison to take no further action without prior no tice to him. After not having heard further from Moore, Allison wrote him on August 20, 1998, detailing the problems hehad hadwith three different adjusters and that he wanted to move the case on as quickly as possible. On September 2, 1998, Moore again wrote Allison and notified him that the court jacket reflected that the defendant had not been served with process and that Moore did not have authority from the defendant

to waive service of process. Allison thereupon had a pluries summons issued on September 15, 19 98, which was more

than one ye

ar from the date of the issuance of th

e ali as summons i ssued on July 12, 1997, and defendant was served on September 25, 1998.
On September 30, 1 998, Moore, on beh alf of Bell, filed a m

otion to dismiss

on the ground that plaintiff’s action was barred by the statute of limitatio

ns because of pla

intiff’s failure

to comply with Rule 3, Tenn.R.Civ.P. The tr ial court grant

ed the motion to

dismiss, and Crump appeals and presents two issues for review. They are, as stated in his brief:

I. Was State

Farm acting as the agent for its insured, Kimber

ly Bell, when it assumed control of the lawsuit plaintiff filed against her and-3- the subsequent se

ttlement negotia

tions.

II. Did State Farm impl

iedly waive

the provisions of Te

nn.R.Civ.P. 3 so that it is now estopped to use it as a defense.

We perceive the determinative issue to be whethe r the defendant i s equitably e

stopped to
as se rt that plaintiff’s cause of action is time barred by plaintiff’s failure to comply with Rule 3, Tenn.R.Civ.P.
Rule 3, Tenn.R.Civ.P. , provides:

All civil actions are commenced by filing a complai nt w ith the clerk of the court. An action is commenced within the meani ng o f any statute of limitations upon such filing of a complaint, whether process be issue d or n ot issued and whether process be returned served or unserved. If process rema ins unissued for 30 days or is notserved within 30 days from issuance, regardless of the reason, the plaintiff cannot re

ly upon the original com mencement

to toll t he running of a statute of limitations unless the p laintif f continues the action by obtaining issuance of new process within
one year from issuanc

e of the previous pr

ocess or, if no process is issued, within one year of the filing of the co

mplaint. (Emphasis added).
Appellant concedes by his brief that there was no compliance with the requirements of

Rule 3, butasserts that the action of Bell’s insurance company, acting for Bell, caused his noncompliance with Rule 3.

The burden of establishing an estoppel rests upon the party who invokes it. Jenk ins-Subway, Inc. v. Jones , 990 S.W. 2d 713 (Tenn . Ct. App. 1 998). In Gitter v. Tennesse e Farmers Mut. Ins. Co. , 60 Tenn. App. 698, 450 S.W.2d 780 (1969), this Court st ated the require

ments to establish equitable estoppe

l:

The essential elemen ts of an equitable

estoppel as related to the party claiming the estoppel, are, (1) lack of knowledge and of the
mea ns of knowledge of the truth as to the facts in question ; (2 ) reliance upon the conduct of the party estopped, and (3) action based thereon of such a chara

cter as to chang

e his position preju

dicially

. Provident

Washington Ins. Co. v. Reese (1963), 213 Tenn. 355, 373 S.W.2d 613.

Id. At 783.

In Toney v. Cunningham , No. 02A01-9801-CV-00005, 1999 WL 188291 (Tenn. Ct. App.-4-

April6, 1999), this Court c onsidered the que

stion of equit

ab le estoppel in connection with the plaintiff’s noncompliance with Rule 3. In Toney , the plaintiff filed a wrongful death action on May 26, 1995, against Pearcy and Mary Ward, and others.

Process was issue

d the same day

to the Wards, butwas returned unserved on J une 16, 1995. On March 20, 1996, the attorney for the Wards telephoned the attorney

for the plaintiff

and requested a

dditional time to ans

wer plaintiff’s c

omplaint , and it was agreed during this conversation that the Wards would file an answer to the plaintiff’s complaint and that

no default judgme

nt would be sought

or taken again

st the Wards. On May 22, 1996, Ward’s attorney

faxed and mailed a

letter to plaintiff’s attorney stating that the Wards had not been served with process. Thereafter, on July 2, 1996, process was again issued to the Wards, and they were served. The Wards fi led an an swer on July 17, 1996. Subsequently, the Wards filed moti ons to quash the process that was served on them and to dismiss the complaint. This motion
was granted by

the trial court. Pla

intiff contended

, however, that th

e Wards should

be precluded from asserting lack of service of process as a def ense under

the doctrine of equitable estoppel arguing that the March 20, 1996 agreement between Toney ’s counsel and War ds’s co unsel expressed
an intenton the part of the Wards to proceed with the lawsuit, even though they had not been served withprocess and that Toney relied to her detriment upon the intent expressed by this ag re ement. Affirming the tr

ial court, the Cour

t noted the elemen

ts of equitable es

toppel and said:

In the instant case, we do not think that the actions of counsel for the Wards amounted

to a false repre

senta ti on or concealment of material facts. Nor do we think that this conduc t was calculated to convey the impression that the

facts were in any way diff erent from those subsequently asserted

by the Wards. The Wards did not agree to waiv e service of process or to waive any defense based on the statute of limitations. Rather, the War ds simply agreed to file an
answer to Ms. Toney’ s complaint. Consistent with this agreement, an
answer was filed by the Wards on July 17, 1996. Additionally, there is no evidence that

, in agreeing

to answer Ms. Toney’s

complaint, the Wards intended to induce Ms. Ton ey in to allowing the statute of limitations to expire. On the contrary, in a letter dated May 22, 1996, counsel for the Wards notified counsel for Ms. Toney that the Wards had not been served with process. On the date that this notification occurred, Ms. Toney could have timely refiled her action against the Wards, thus allowing her

to rely on the date of her original complaint for purposes of the sta

tute of limitations. F

inally, th ere i s no indication that Ms. Toney did not know or have

the ability to

discover that the Wards had not been served with process. Although under no obligation to do so, counsel for th e Wards notified c ounsel for Ms. Toney of this fact. Even absent this notification, however, Ms. Toney
or her counsel could have readily discovered that the Wards had not been served with

process.

As discussed above,

we find that M s. Toney has f ailed to1 At th e ti me the plaintiff filed the complaint, Tenn.R.Civ.P. 3 required issuance of

subsequent

summonses within

six months of prior summonses instead of the one-year period now provided for in the rule.

-5-

prove the essentia

l eleme nts of the doctrine of equitable esto

ppel. Thus, having also found that Ms. Toney failed to comply with the requirements

of Rule 3, we hold that the trial court properly granted the Wards’ motion to qua sh the process served

on them and dismiss Ms. Toney’s

complaint.

Id. at **3.

In Occhipinti v. Stephe

ns , No. 01A 01-9504-CV-00133, 1995 WL 571849 (Tenn. App. Sept. 29, 1995) the only issue before the Court was whether the d

efendant was es

topped to raise the plaintiff’s failure to keep t his action alive in a

ccordance with

Rule 3, Tenn.R.Civ.P.

In Occhipinti, plai ntiffs were injured in a n automobile acci

dent on December

12, 1991, and ear

ly in 1992, the

ir attorney started negotiating a settlement with the defendant ’s insurance company. Negotiations dragged on through the summer and fall, a nd plaintiffs’ attorney filed a complaint on November 12, 1992, because the statute of limitations was about to run. Summons was issued on November 13, 1992, and a “not to

be found” retur

n was made on Nove

mber 16, 1992. Plain

tiffs’ counsel took no further acti on until September 1 , 1993, when he ha d an alias summons iss

ued, which was a

ls o returned “not to be found.” Finally, plaintiffs obtained service of process throug h the Secretary of Stateon November 4, 1993. The trial judge dismissed the case because of plaintiffs’ fa

ilure to comply with Rule 3. Plaintiffs asserted that the reason they took no action between the return of the first summons and the issuance of the second summons on September 1, 1993 1 , was “because the adjuster for the defendant’s insurance company led them to believe that it was notnecessary to serve the defendant.” Id . at **1. The record indicated that the adjuster for the insurance company did not refer the case to a law

yer for a d efense, becau

se the defendant had

not been served with process, and the parties continued to negotiate resulting in an offer by the insura nce company

to settle on July 27, 1993, which offer was rejected by the plaintiff. Affirming the trial court’s dismissal of plaintiffs’ action, this Court said:

The dealings betwe en the parties in th

e cruc ial six month period after the filing of the original complaint (which the plaintiffs were careful to file even though the parties were in negotiations) do not make out a case of equ itable estoppel. Even viewed in the light most favorable to the

plaintiffs, the proof shows onl y that plainti

ffs’ counsel assumed that it was not necessary to get the defendant serve d; and that assumption was based on the fact that the insurance adjuster said it didn’t matter to him whether the defendant was served or not

. There is no proof that the adjuster knew of any legal reason why the plaintiffs should get the defendant served once the action had been filed. The adjuster testified he was not aware that process had to be-6- rene wed with in six months. We do not think a reasonable person would have concluded f

rom the exchange

with the adjuster t

hat th e insurance company was waiving any of the legalrights of its insured.

An other reason why the pl aintiffs cannot sustain their estoppel argument is the fact that the

negoti ations be tween the parties broke down well before a year had passed since the filing of the original complaint. Th erefore, the plaintiffs had ample time to refile the action and avoid the statu

te of limitations problem. Plaintiffs cannot contend that they still thought they were going to settle

the case when they chose to obtain new proce

ss in an untimely manner rather than refiling the action within th e year fr om th e filing of the original action.

Id. at **3.

In the case at bar, there is not hi ng in the recor

d to indicate that Sta

te Farm at any

time indicated to plaintiff’s counsel that there was no need to comply with the provisions of Tenn.R.Civ.P. 3. Plaintiff asserts that he was led to believe that the case would be arbitrated. The i nsurance policy is not a

part of the reco

rd in this case, an

d we are unable t

o determine if the

re is anything in the policy provi si ons that would indic ate when an ag

reement to arbitr

ate is made it is binding to the extent that all procedural req

uir em ents for actions against the insured are waived. There simply

is nothing in this record to indicate that representation

s were made by

State Farm to lead Bell’s attorney to believe that there was no nece ssity to comply with Rule 3.

Acco rdi ngly, the order of the trial court is affirmed, and this case is remanded to the trial court for such other pr

oceedings as ma

y be neces sary. Costs

of the appeal are

assessed against the appellant, Talmage Crump.