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How Can I File a Personal Injury Lawsuit Against Someone Who Has Died?


When a negligent driver causes a car accident, the victims have the right to file a personal injury lawsuit to recover their damages. But what happens if the negligent driver dies before the lawsuit is filed? Can you literally sue a dead man in Tennessee?

Historically, the common law provided that when someone died, so did any potential lawsuit against them. But the Tennessee General Assembly changed the common law rule through legislation. Under current law, a personal injury claim does not die with the defendant; instead, the victims may sue the personal representative of the deceased person’s estate. And if no estate was opened for some reason, then the victims may petition a Tennessee judge to appoint an administrator “for the limited purpose of serving as the defendant in the lawsuit.”

TN Court of Appeals Refuses to Extend Deadline for Accident Victim

The Tennessee Court of Appeals recently addressed a related scenario. This case, Algee v. Craig, involved a September 2017 car accident between two people. The plaintiff was one of those people. He wanted to sue the other person, but she passed away about four months after the accident.

The decedent had an estate. A chancery court appointed a personal representative in February 2018. The estate was subsequently closed by court order approximately five months later. After the estate closed, the plaintiff attempted to file his lawsuit against the personal representative. The plaintiff maintained he was never informed about the closing of the estate. The personal representative insisted the law required the plaintiff to first seek a court order reopening the estate. But by the time the plaintiff took action, the statute of limitations had already expired.

Before the Court of Appeals, the plaintiff argued the trial judge should have granted him more time to serve his lawsuit properly after reopening the estate. The appeals court rejected this argument. It held the plaintiff served improperly served the personal representative the first time, i.e., he filed the lawsuit after the estate was already closed. Since this lawsuit was not “timely” served in the first place, the plaintiff could not save his lawsuit by trying to reopen the estate after-the-fact.

Speak with a Tennessee Car Accident Attorney Today

In personal injury cases, deadlines matter. Judges will strictly apply any deadline against a plaintiff, no matter what the merits of their particular lawsuit. For most personal injury lawsuits, the deadline to file is within one year of the accident itself. In cases, like the one described above, where the defendant is dead, the one-year clock is “tolled” or stopped from the date of death until the appointment of a personal representative. But even then, the statute of limitations cannot be extended more than 6 months.

Keeping track of all these deadlines can be quite overwhelming, especially when you are already trying to recover from your accident. This is where an experienced Gatlinburg personal injury lawyer can help. Contact the offices of Fox, Farley, Willis & Burnette, today if you have been injured in an accident and need legal representation.




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