Durham v. Losleben

624 S.W.3d 492

Susan DURHAM

v.ESTATE OF Gus LOSLEBEN et al.

No. W2019-01623-COA-R3-CV

Court of Appeals of Tennessee, AT JACKSON.

September 16, 2020 Session

FILED December 8, 2020

Benjamin Scott Harmon, Savannah, Tennessee, for the appellant, Susan Durham.

James Irvin Pentecost and Jeffery Austin Stokes, Jackson, Tennessee, for the appellee, Estate of Gus Losleben; Hardin County, Tennessee; and Hardin County Fire Department.

J. Steven Stafford, P.J., W.S., delivered the opinion of the court, in which Arnold B. Goldin, and Kenny Armstrong, JJ., joined.

J. Steven Stafford, P.J.

A Hardin County firefighter and Appellant's husband died after their vehicles collided. Appellant alleged that the firefighter had negligently caused the accident, and thus filed tort claims against Hardin County under a theory of vicarious liability and Tennessee's Governmental Tort Liability Act. She filed her claims more than one year after the accident, so the trial court dismissed them as barred by the applicable one-year statute of limitations. She appeals, and we affirm.

FACTS/PROCEDURAL HISTORY

Christopher Durham and Gus Losleben each died after colliding while driving separate vehicles in Hardin County on December 9, 2014. Mr. Losleben was a volunteer employee¹ of the Hardin County Fire Department ("HCFD") and was driving a HCFD fire truck at the time of the collision. Susan Durham ("Appellant"), Mr. Durham's widow and Administratix of his estate, filed a wrongful death complaint against Mr. Losleben's estate, HCFD, Hardin County ("Appellee"), and John Does 1-10 on December 30, 2015, in the Circuit Court of Hardin County ("the circuit court"). According to Appellant's complaint, she did not know that Mr. Losleben was at fault on the date of the accident.

Appellant's complaint alleged negligence and negligence per se of Mr. Losleben (such that Hardin County would be liable under the Tennessee Governmental Tort Liability Act ("GTLA")) and 42 U.S.C. § 1983 claims against Mr. Losleben, HCFD, and Hardin County. Appellant's claims were removed to the United States District Court for the Western District of Tennessee, Eastern Division ("the federal court"). The federal court dismissed the § 1983 claims with prejudice and remanded Appellant's state law claims to the circuit court.

Mr. Losleben's estate, HCFD, and Hardin County thereafter filed a Tennessee Rule of Civil Procedure 12.02(6) motion to dismiss on March 15, 2019, in the circuit court.² They argued that Appellant's claims were barred by the statute of limitations in the GTLA, that HCFD was not a separate, suable entity, and that Mr. Losleben's estate was immune from liability. Appellant filed a response in opposition to the motion to dismiss on June 10, 2019. Therein, she argued that she only discovered Mr. Losleben's fault after making efforts to obtain more information regarding how the accident occurred, including obtaining the Tennessee Highway Patrol ("THP") Report, which she received one month after the accident, and obtaining the Electronic Control Module ("ECM") data from the fire truck, which she received six months after the accident. Appellant also argued that the statute of limitations was tolled under Tennessee Code Annotated section 28-1-110, as discussed in detail, infra. The circuit court heard the motion to dismiss on June 19, 2019, and granted the motion with prejudice in a final order entered July 15, 2019. In this order, the circuit court found that Appellant's claims against the Hardin County entities were time-barred, Mr. Losleben's estate was immune under the GTLA, and Appellant's claims against John Does were moot and barred by the statute of limitations.³ Appellant timely appealed.⁴

ISSUES PRESENTED

Appellant raises two issues, which we restate slightly as follows and which Appellee echoes:

1. Whether Appellant's GTLA claims were timely under the discovery rule, as applied to the one-year statute of limitations in the GTLA.

2. Whether Appellant's GTLA claims were timely under Tennessee Code Annotated section 28-1-110, as applied to the one-year statute of limitations in the GTLA.

STANDARD OF REVIEW

As a threshold matter, Appellant argues that because the circuit court considered matters outside the pleadings in ruling on the Rule 12.02(6) motion to dismiss, including email correspondence between the parties regarding inspection of the vehicles, the motion should be treated as a motion for summary judgment. Neither party explicitly designates this as an issue on appeal, but because the record establishes that the circuit court did consider matters outside of the pleadings, we will proceed to treat the motion as a motion for summary judgment. See Tenn. R. Civ. P. 12.02 ("If, on a motion asserting the defense numbered (6) to dismiss for failure to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56."); Smith Mech. Contractors, Inc. v. Premier Hotel Dev. Grp. , 210 S.W.3d 557, 562–63 (Tenn. Ct. App. 2006) ("Since matters outside the pleadings were considered by the Trial Court when resolving this particular issue, we will treat the Bank's motion to dismiss as a motion for summary judgment in accordance with Tenn. R. Civ. P. 12.02.").

"Summary judgment is appropriate only when the moving party establishes that there are no genuine issues of material fact and that it is entitled to a judgment as a matter of law. Tenn. R. Civ. P. 56.04." Woodruff v. Walker , 542 S.W.3d 486, 493–94 (Tenn. Ct. App. 2017). In other words, "[a] grant of summary judgment is appropriate only when the facts and the reasonable inferences from those facts would permit a reasonable person to reach only one conclusion." Dick Broad. Co. of Tennessee v. Oak Ridge FM, Inc. , 395 S.W.3d 653, 671 (Tenn. 2013) (quotation marks and citations omitted).

A trial court's "grant or denial of a motion for summary judgment is a matter of law; therefore, our standard of review is de novo with no presumption of correctness." Bowers v. Estate of Mounger , 542 S.W.3d 470, 477 (Tenn. Ct. App. 2017) (citations omitted). Consequently, we "must make a fresh determination of whether the requirements of Rule 56 of the Tennessee Rules of Civil Procedure have been satisfied." Id. (quoting Rye v. Women's Care Ctr. of Memphis, MPLLC , 477 S.W.3d 235, 250 (Tenn. 2015) ). In reviewing a summary judgment motion on appeal, "we are required to review the evidence in the light most favorable to the nonmoving party and to draw all reasonable inferences favoring the nonmoving party." Shaw v. Metro. Gov't of Nashville & Davidson Cty. , 596 S.W.3d 726, 733 (Tenn. Ct. App. 2019) (citations and quotations omitted).

DISCUSSION

There is no dispute that the claims at issue in this appeal are governed by the GTLA. The GTLA provides that causes of action against the government "must be commenced within twelve (12) months after the cause of action arises." Tenn. Code Ann. § 29-20-305(b). Here, it is undisputed that Appellant filed her claim more than one year (one year and twenty-one days) after the accident that killed her husband. Appellee has therefore raised the statute of limitations as an affirmative defense, arguing that Appellant's claim is time-barred. As we have previously explained,

Defenses based on a statute of limitations are particularly amenable to summary judgment motions. See Creed v. Valentine , 967 S.W.2d 325, 327 (Tenn. Ct. App. 1997) ; Allied Sound, Inc. v. Neely , 909 S.W.2d 815, 820 (Tenn. Ct. App. 1995). Most often the facts material to a statute of limitations defense are not in dispute. When the facts and the inferences reasonably drawn from the facts are not disputed, the courts themselves can bring to bear the applicable legal principles to determine whether the moving party is entitled to a judgment as a matter of law.

Cardiac Anesthesia Servs., PLLC v. Jones , 385 S.W.3d 530, 539 (Tenn. Ct. App. 2012) (quoting Cherry v. Williams , 36 S.W.3d 78, 83 (Tenn. Ct. App. 2000) ); see also Sherrill v. Souder , 325 S.W.3d 584, 596 (Tenn. 2010) (citations omitted) ("[T]he failure to comply with a statute of limitations is an affirmative defense...."). We may therefore affirm the trial court's dismissal of Appellant's claim on summary judgment grounds "if the facts in the record and all reasonable inferences demonstrate that [Appellant's] cause of action accrued" more than one year before December 30, 2015, unless the statute of limitations was tolled. Sherrill , 325 S.W.3d at 597. Appellant argues that her otherwise untimely claim is saved by operation of either the discovery rule or Tennessee Code Annotated section 28-1-110. We will consider these arguments in turn.

I.

Appellant first argues that under the discovery rule, her claim is timely. The discovery rule applies to "all tort actions predicated on negligence, strict liability, or misrepresentation." Doe v. Coffee Cty. Bd. of Educ. , 852 S.W.2d 899, 904 (Tenn. Ct. App. 1992). We have previously described it as follows:

It is well-established that the discovery rule, where applicable, "is an equitable exception that tolls the running of the statute of limitations until the plaintiff knows, or in the exercise of reasonable care and diligence, should know that an injury has been sustained." It is based on "reason, logic and fundamental fairness." The purpose of the discovery rule is to prevent the inequitable result of "strict application" of the statute of limitations, which would require plaintiffs "to vindicate a non-existent wrong, at a time when the injury is unknown and unknowable."

Smith v. Hauck , 469 S.W.3d 564, 569–70 (Tenn. Ct. App. 2015) (citations omitted). Appellee does not dispute that claims raised under the GTLA and claims of vicarious liability are both subject to...