Ferrell v. Miller

JASON FERRELL v. ROBERT MILLER and KAYLA IVEY

No. M2013-00856-COA-R3-CV

COURT OF APPEALS OF TENNESSEE AT NASHVILLE

September 24, 2013 Session

Filed: November 27, 2013

Direct Appeal from the Circuit Court for Montgomery County

No. MC-CC-CV-OD-11-1389

Ross Hicks, Judge

While the defendant spouses were separated and living in separate counties, the defendant driver fatally shot himself during a police pursuit while driving a Toyota 4Runner vehicle which was to be awarded to him in the defendants' pending divorce. Said vehicle struck the plaintiff, allegedly causing serious injuries. The plaintiff sued the defendant driver alleging negligence, and he sued the defendant spouse on claims of imputed negligence. Much later, the plaintiff sought to amend his complaint to assert a negligent entrustment claim against the defendant spouse. Because the plaintiff failed to have appointed, to substitute, and to serve an administrator ad litem prior to the expiration of the statute of limitations, the trial court dismissed the negligence claims against the deceased defendant driver and the imputed negligence claims against the defendant spouse. It implicitly denied the plaintiff's motion to amend. We affirm the circuit court's dismissal of the claims against the deceased defendant driver and its dismissal of the imputed negligence claims against the defendant spouse; however, we remand for consideration of the request to add a negligent entrustment claim against the defendant spouse and for express findings.

Tenn. R. App. P. 3; Appeal as of Right; Judgment of the Circuit Court Affirmed and

Remanded

ALAN E. HIGHERS, P.J., W.S., delivered the opinion of the Court, in which DAVID R. FARMER, J., and HOLLY M. KIRBY, J., joined.

Herbert M. Schaltegger, Thomas R. Lewis, Nashville, Tennessee, for the appellant, Jason Ferrell

J. Matthew Miller, Clarksville, Tennessee, for the appellees, Robert Miller and Kayla Ivey

OPINION

I. FACTS & PROCEDURAL HISTORY

Robert Miller and Kayla Ivey (collectively "Defendants") separated in January 2010. A complaint for divorce was filed, and Defendants established separate residences in separate counties. Upon separation, Ms. Ivey continued to live in the marital residence in Robertson County with her grandmother, Mary Simpson, until June 6, 2010. From June 6, 2010 to June 25, 2010, Ms. Ivey resided at a different address, also in Robertson County. From the parties' separation until June 25, 2010, Mr. Miller lived in Montgomery County with his girlfriend, Jessica Smith. In the pending divorce, the Defendants agreed that Mr. Miller would be awarded a 2002 Toyota 4Runner vehicle which was primarily driven by him during Defendants' marriage. Mr. Miller continued to drive this vehicle daily during Defendants' separation.

According to the Affidavit testimony of Mr. Miller's girlfriend, Jessica Smith, on the evening of June 25, 2010, Mr. Miller and Ms. Smith began arguing after consuming much alcohol. Ms. Smith locked Mr. Miller out of a bedroom at the Montgomery County residence, which enraged him and caused him to throw a mattress off of its frame. Underneath the mattress was a pistol belonging to Ms. Smith's husband, which Mr. Miller grabbed, "waved it around in the air . . . . [and then] unexpectedly shot . . . off . . . ." Ms. Smith ran from the residence and Mr. Miller ultimately fled in the 4Runner vehicle. A police chase ensued, and Mr. Miller fatally shot himself during the pursuit. While traveling in a southward direction on 41A Bypass in Montgomery County, the 4Runner vehicle struck a northbound vehicle driven by the plaintiff, Jason Ferrell ("Plaintiff"), which allegedly resulted in serious personal injury to Plaintiff.

On June 20, 2011, Plaintiff filed a Complaint against defendants "Robert Miller and Kayla Ivey" alleging Mr. Miller's negligence, and arguing that Mr. Miller's negligence was imputed to Ms. Ivey based upon her alleged ownership of the vehicle, the Family Purpose Doctrine, or a principal/agent relationship. On November 21, 2011, Ms. Ivey entered a limited appearance in the case, expressly "preserv[ing and asserting] her objections to the jurisdiction of th[e] Court over the persons of the Defendant; to venue; service of process; insufficient service of process; subject matter jurisdiction; and to the failure of Plaintiff's suit to state a claim upon which relief may be granted at law."

On December 13, 2011, Ms. Ivey filed a document styled "Motions, Objections, and Answer" in which she denied Plaintiffs' allegations related to her imputed negligence, she asserted numerous affirmative defenses, and in which she set forth various objections toPlaintiff's Complaint, such as his alleged failure to properly effectuate service upon her.¹ Ms. Ivey noted Mr. Miller's June 2010 death approximately eight times within the document and she highlighted Plaintiff's failure to appoint and serve an Administrator Ad Litem to preserve his claims against the deceased Mr. Miller. Based upon her argument that the statute of limitations had run as to claims against Mr. Miller, Ms. Ivey moved for dismissal/summary dismissal of the imputed negligence claims against her.

On December 20, 2011, Plaintiff filed a "Motion for Appointment of Administrator Ad Litem" in which he acknowledged that Ms. Ivey's December 13, 2011 Answer "affirmatively aver[red] that Defendant Robert Miller is deceased." Based upon this averment, Plaintiff moved the court to appoint an Administrator Ad Litem to accept service of process "on the apparently-deceased Defendant Miller."

On March 19, 2012, the trial court entered an "Order Appointing Administrator Ad Litem" appointing attorney David J. Silvus "to act as Administrator Ad Litem solely for the purpose of accepting service of process on Defendant Robert Miller." Plaintiff, however, did not amend his Complaint to name the Administrator Ad Litem as a defendant. Instead, on March 28, 2012, Plaintiff simply attempted to serve a copy of the original complaint-naming Mr. Miller as a defendant-upon "Robert Miller c/o Attorney David Silvus[.]" Mr. Silvus, however, declined to accept service because the accompanying complaint was not filed against the Administrator Ad Litem.

Mr. Silvus, according to his Affidavit, then contacted Plaintiff's counsel's firm and conveyed his position that the complaint required an amendment to add the Administrator Ad Litem as a defendant before he could accept service of process. On April 19, 2012, Plaintiff again attempted to serve Mr. Silvus-this time, with a summons issued in the name of "Robert Miller, Deceased, c/o Attorney David Silvus, Administrator Ad Litem[.]" However, Mr. Silvus, again refused to accept service because the complaint accompanying the summons remained the original complaint which did not name the Administrator Ad Litem as a defendant.

Thereafter, on May 30, 2012, Plaintiff, apparently without obtaining leave to amend, filed an Amended Complaint, naming "Estate of Robert Miller, Deceased, and Kayla Ivey" as defendants. Ms. Ivey filed her "Motions, Objections, and Answer to Amended Complaint" on November 7, 2012, claiming, among other things, that Plaintiff had failed to sue the Administrator Ad Litem prior to the running of the statute of limitations. Thus, Ms. Ivey argued, the claims against Mr. Miler were time-barred, and therefore, there was nonegligence to impute to her. She also filed a "Motion and Memorandum Seeking Dismissal" along with the Affidavits of Kayla Ivey, Jessica Smith, and David Silvus.

Finally, on December 31, 2012, Plaintiff filed a "Motion to Amend" to substitute the Administrator Ad Litem as personal representative for the deceased defendant Robert Miller and to add a claim of negligent entrustment against Ms. Ivey.

On February 1, 2013, the trial court issued its "Memorandum Opinion and Order" granting Ms. Ivey's motion for summary judgment/motion to dismiss, and dismissing Plaintiff's lawsuit in its entirety. The trial court accepted Ms. Ivey's arguments "in toto[,]" specifically finding that "based upon the expiration of the statute of limitations, the failure to sue the proper party, the failure to obtain leave to file an amended complaint, and the inability to impute any negligence to Defendant Ivey, this suit must be dismissed as a matter of law." Additionally, the court found that "irrespective of the foregoing, there is no claim asserted against Defendant Ivey upon which she may be held liable." Plaintiff timely appealed.

II. ISSUES PRESENTED

Mr. Ferrell presents the following issues for review, as summarized:

1. Whether the trial court erred in denying Mr. Ferrell's motion to amend his complaint to substitute the Administrator Ad Litem for Robert Miller;

2. Whether the trial court erred in dismissing the Complaint as to Mr. Miller;

3. Whether the trial court erred in denying Mr. Ferrell's motion to amend his complaint to add a count of negligent entrustment against Ms. Ivey; and

4. Whether the trial court erred in dismissing the Complaint as to Ms. Ivey.

For the following reasons, we affirm the circuit court's dismissal of the claims against Mr. Miller and its dismissal of the imputed negligence claims against Ms. Ivey; however, we remand for consideration of the request to add a negligent entrustment claim against Ms. Ivey and for express findings.

III. DISCUSSION

A. Claims Against Robert Miller

Tennessee Code Annotated section 20-5-103, known as the "Survival Statute," was originally enacted in 1935, and it provides that:

In all cases where a person commits a tortious or wrongful act causing injury or death to another, or property damage, and the person committing the wrongful act dies before suit is instituted to recover damages, the death of that person shall not abate any cause of action that the plaintiff would have otherwise had, but the cause of action shall survive and may be prosecuted against the personal representative of the tort-feasor or wrongdoer.

Tenn. Code Ann. § 20-5-103(a). Pursuant to this statute,...