A tort action must be commenced against the tortfeasor within one year of the date of the event giving rise to the cause of action. Generally, when the suit is filed against the tortfeasor, a summons is also issued for service/notice upon the uninsured motorist carrier. While the uninsured motorist carrier is not a named party in the action, the uninsured motorist carrier must be given notice as required under TCA 56-7-1206 if the plaintiff intends to pursue uninsured motorist benefits.
Sometimes, at the time of the filing of the lawsuit, the plaintiff does not issue a summons for the uninsured motorist carrier. Maybe there is strategic reason. Maybe the plaintiff just forgets. Regardless of the reason, what then? The question then is, can a plaintiff bring the uninsured motorist carrier into a lawsuit after the expiration of the one-year statute of limitations? The answer … yes, under the right set of circumstances. This is because a claim against the uninsured motorist carrier is, in part, a contractual claim between the insured and the insurer and it is governed by the six-year statute of limitations governing contracts rather than the one-year statute of limitations governing tort claims. But, there are requirements that must first be met.
In order to pursue a claim against the uninsured motorist carrier, there must first be an uninsured/underinsured motorist. A plaintiff must first meet the requirements to pursue a claim against the uninsured motorist. The lawsuit must be filed timely and the requirements for issuance and return of the summons must be met. There is no uninsured motorist claim if there is no uninsured motorist. There is no direct action against the insurer under these circumstances. If a plaintiff misses the one-year statute of limitations against a tortfeasor, the plaintiff cannot be saved by bringing an action directly against the insurer. The ability to pursue an uninsured motorist claim is contingent upon filing the lawsuit properly.
The above issue was discussed in Batts v. Green, 544 S.W.3d 345 (Tenn. Ct. App. 2017). Click on the link for all of the particulars. The appellate court stated in Batts:
"[i]n accordance with Tenn. Code Ann. § 56-7-1206 it is incumbent that suit be instituted against an uninsured motorist with service thereafter upon the insured's uninsured motorist carrier. We find no provision in Tenn. Code Ann. § 56-7-1206(a) which requires that a claim by an insured must be served upon an uninsured motorist carrier within one year from the date of a motor vehicle accident so long as the statute of limitations has not run against the uninsured motorist."
Maybe there are strategic reasons to not issue a summons for the uninsured motorist carrier at the time of the filing of the lawsuit. My opinion, the best practice is to go ahead and issue the summons for the uninsured motorist carrier at the time the suit is filed and at the time a summons is issued for the party defendant. It’s a minimal cost and it’s not something that has to be thought about any further. I think any plaintiff who delays issuing a summons for the uninsured motorist carrier runs the risk of a prejudice argument by the uninsured motorist carrier if the uninsured motorist carrier is given notice of the case/served with the summons at a later time. Even if a plaintiff chooses to delay issuance, do not forget a summons must be issued within the six-year statute of limitations governing contract claims.
Tommy Santel is a co-founding partner of Santel | Garner. Tommy is a former government prosecutor. He is a Tennessee Supreme Court Rule 31 General Civil Mediator. Tommy’s practice areas include criminal defense and civil litigation.
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