Talmage Crump v. Kimberly Bell

IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON

TALMAGE CRUMP v. KIMBERLY 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 “not to be

found.” Plaintiff issued pluries summons more than one year after the return of the alias summons.

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 relying upon Tenn.R.Civ.P. 3, because of action of

defendant’s liability insurance carrier leading him to believe that the defense 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

CRAWFORD , P.J., W.S., delivered the opinion of the court, in which HIGHERS , J., and LILLARD , J.,

joined.

James T. Allison, Memphis, For Appellant

Craig Creighton Conley, Robert L. Moore, Memphis, For Appellee

OPINION

Plaintiff, Talmage Crump, appeals the order of the trial court dismissing his complaint

against defendant, Kimberly Bell.

Crump sustained personal injuries in an automobile accident with Bell that occurred on

February 14, 1996. Bell carried liability insurance with State Farm Mutual Insurance Company. In

August, 1996, Crump retained attorney James T. Allison to represent him in his claim for personal

injuries, and by letter dated August 12, 1996, Allison informed Lynn Jewel, an adjuster for State

Farm, that he represented 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, and they agreed to continue to negotiate without an answer being filed.

Suit was filed on February 11, 1997, and the summons that was issued on that same date 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.

The plaintiff was still having difficulty from his injury in April, 1997, and Allison wrote

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

with the court clerk’s office and found that there had been a “not to be found return” on the original

summons, and that is when he filed the alias summons on July 12, 1997.

In September, 1997, Eva Myers, another State Farm adjuster, wrote Allison to inform him

that the case had been assigned to her, and Allison sent plaintiff’s current medical expenses 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 medical expenses at that time were $3,631.00, and lost

wages amounted to $1,664.00. On behalf of the plaintiff, Allison offered to settle the case for

$20,000.00, and Myers advised Allison that she needed the physical 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 arbitrators from the list sent to him by

Myers. Nothing was heard 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 advised Allison that before he could arbitrate 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 arbitrate 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 Robert 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 claim file, and he had not verified service of process.

Moore stated that he would file a responsive pleading but requested Allison to take no further action

without prior notice to him. After not having heard further from Moore, Allison wrote him on

August 20, 1998, detailing the problems he had had with 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, 1998, which was more than one year from the date

of the issuance of the alias summons issued on July 12, 1997, and defendant was served on

September 25, 1998.

On September 30, 1998, Moore, on behalf of Bell, filed a motion to dismiss on the ground

that plaintiff’s action was barred by the statute of limitations because of plaintiff’s failure to comply

with Rule 3, Tenn.R.Civ.P. The trial court granted 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, Kimberly Bell,

when it assumed control of the lawsuit plaintiff filed against her and

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the subsequent settlement negotiations.

II. Did State Farm impliedly waive the provisions of Tenn.R.Civ.P.

3 so that it is now estopped to use it as a defense.

We perceive the determinative issue to be whether the defendant is equitably estopped to

assert 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 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 30 days or is

not served within 30 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

added).

Appellant concedes by his brief that there was no compliance with the requirements of Rule

3, but asserts 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. Jenkins-Subway,

Inc. v. Jones, 990 S.W.2d 713 (Tenn. Ct. App. 1998). In Gitter v. Tennessee Farmers Mut. Ins.

Co., 60 Tenn. App. 698, 450 S.W.2d 780 (1969), this Court stated the requirements to establish

equitable estoppel:

The essential elements of an equitable estoppel as related to

the party claiming the estoppel, are, (1) lack of knowledge and of the

means 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 character as to change his position prejudicially.

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.

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April 6, 1999), this Court considered the question of equitable 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 issued the same day to the Wards,

but was returned unserved on June 16, 1995. On March 20, 1996, the attorney for the Wards

telephoned the attorney for the plaintiff and requested additional time to answer plaintiff’s complaint,

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

complaint and that no default judgment would be sought or taken against 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 filed an answer on July 17, 1996. Subsequently, the Wards filed

motions to quash the process that was served on them and to dismiss the complaint. This motion

was granted by the trial court. Plaintiff contended, however, that the Wards should be precluded

from asserting lack of service of process as a defense under the doctrine of equitable estoppel

arguing that the March 20, 1996 agreement between Toney’s counsel and Wards’s counsel expressed

an intent on the part of the Wards to proceed with the lawsuit, even though they had not been served

with process and that Toney relied to her detriment upon the intent expressed by this agreement.

Affirming the trial court, the Court noted the elements of equitable estoppel and said:

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

for the Wards amounted to a false representation or concealment of

material facts. Nor do we think that this conduct was calculated to

convey the impression that the facts were in any way different from

those subsequently asserted by the Wards. The Wards did not agree

to waive service of process or to waive any defense based on the

statute of limitations. Rather, the Wards 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. Toney into 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 statute of limitations. Finally, there is 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 the Wards notified counsel 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 Ms. Toney has failed to

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prove the essential elements of the doctrine of equitable estoppel.

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 quash the process served on them and dismiss

Ms. Toney’s complaint.

Id. at **3.

In Occhipinti v. Stephens, No. 01A01-9504-CV-00133, 1995 WL 571849 (Tenn. App.

Sept. 29, 1995) the only issue before the Court was whether the defendant was estopped to raise the

plaintiff’s failure to keep this action alive in accordance with Rule 3, Tenn.R.Civ.P. In Occhipinti,

plaintiffs were injured in an automobile accident on December 12, 1991, and early in 1992, their

attorney started negotiating a settlement with the defendant’s insurance company. Negotiations

dragged on through the summer and fall, and 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” return was made on November 16, 1992. Plaintiffs’ counsel took no

further action until September 1, 1993, when he had an alias summons issued, which was also

returned “not to be found.” Finally, plaintiffs obtained service of process through the Secretary of

State on November 4, 1993. The trial judge dismissed the case because of plaintiffs’ failure 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, 19931, was “because the

adjuster for the defendant’s insurance company led them to believe that it was not necessary to serve

the defendant.” Id. at **1. The record indicated that the adjuster for the insurance company did not

refer the case to a lawyer for a defense, because the defendant had not been served with process, and

the parties continued to negotiate resulting in an offer by the insurance 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 between the parties in the crucial 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 equitable estoppel. Even viewed in the light

most favorable to the plaintiffs, the proof shows only that plaintiffs’

counsel assumed that it was not necessary to get the defendant served;

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

1

At the time 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.

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renewed within six months. We do not think a reasonable person

would have concluded from the exchange with the adjuster that the

insurance company was waiving any of the legal rights of its insured.

Another reason why the plaintiffs cannot sustain their estoppel

argument is the fact that the negotiations between the parties broke

down well before a year had passed since the filing of the original

complaint. Therefore, the plaintiffs had ample time to refile the

action and avoid the statute of limitations problem. Plaintiffs cannot

contend that they still thought they were going to settle the case when

they chose to obtain new process in an untimely manner rather than

refiling the action within the year from the filing of the original

action.

Id. at **3.

In the case at bar, there is nothing in the record to indicate that State 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

insurance policy is not a part of the record in this case, and we are unable to determine if there is

anything in the policy provisions that would indicate when an agreement to arbitrate is made it is

binding to the extent that all procedural requirements for actions against the insured are waived.

There simply is nothing in this record to indicate that representations were made by State Farm to

lead Bell’s attorney to believe that there was no necessity to comply with Rule 3.

Accordingly, the order of the trial court is affirmed, and this case is remanded to the trial

court for such other proceedings as may be necessary. Costs of the appeal are assessed against the

appellant, Talmage Crump.

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