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§47.32A Pre-Suit Notice Requirement - Failure to Wait 60 Days to File Suit

The Case:  Blankenship v. Anesthesiology Consultants Exchange, P.C., 446 S.W.3d 757 (Tenn. Ct. App. 2014).

The Basic Facts:  Plaintiff gave pre-suit notice but filed suit 38 days after sending notice, rather than waiting 60 days as mandated by Tenn. Code Ann. §29-26-121. Court of Appeals affirmed dismissal of case.

The Bottom Line:


·      Plaintiff sent Defendant a notice of intent to sue letter pursuant to Tenn. Code. Ann. § 29-26-121 on September 27, 2010. The return receipt for the notice of intent to sue letter was signed on September 30, 2010. Plaintiff filed her complaint on November 4, 2010, which was only 38 days after the notice of intent to sue letter was sent on September 27, 2010.” 446 S.W.3d at 758.


·      “On March 14, 2013 Defendant filed a motion for summary judgment alleging that Plaintiff had failed to comply with the notice requirements of Tenn. Code. Ann. § 29-26-121 because Plaintiff had filed her complaint less than sixty days after sending the notice of intent to sue letter. It is undisputed that Plaintiff did not comply with the notice requirements of Tenn. Code. Ann. § 29-26-121 because Plaintiff filed this lawsuit before the sixty day notice period had passed.” Id.


·      “Plaintiff opposed the motion for summary judgment arguing that Defendant had waived the defense of failure to comply with Tenn. Code. Ann. § 29-26-121 by not raising it in a timely manner.” Id.


·        Pursuant to the plain and unambiguous language of Tenn. R. Civ. P. 12.08, Defendant could have presented its defense of failure to state a claim upon which relief can be granted in a motion, in its answer, in an amendment to its answer, in ‘a later pleading, if one is permitted, or by motion for judgment on the pleadings or at the trial on the merits....’ Tenn. R. Civ. P. 12.08. Defendant did present its defense of failure to state a claim upon which relief can be granted in a motion. Because Tenn. R. Civ. P. 12.08 provides that Defendant could have presented this defense even as late as ‘at the trial on the merits,’ we cannot find that Defendant waived the defense of failure to state a claim upon which relief can be granted simply because Defendant engaged in discovery prior to filing its motion.” Id. at 760.

Recent Cases:  Cude v. Herren, No. W2010-01425-COA-R3-CV, 2011 WL 4436128 (Tenn. Ct. App. Sept. 26, 2011) (notice and certificate of good faith required in case filed under the Savings Statute; extraordinary cause not shown); Myers v. AMISUB (SFH), Inc., W2010-00837-COA-R9-CV, 2011 WL 664753 (Tenn. Ct. App. Feb. 24, 2011) (medical malpractice case dismissed for failure to serve notice and file certificate of good faith; requirements of notice and certificate of good faith  applied even though case was filed under the Savings Statute, Tenn. Code Ann. § 28-1-105; trial court abused discretion in excusing requirements); DePue v. Schroeder, No. E2010-00504-COA-R9-CV, 2011 WL 538865 (Tenn. Ct. App. Feb. 15, 2011) (plaintiff’s case dismissed where plaintiff filed suit three days before the mandatory 60-day waiting period mandated by Tenn. Code Ann. § 29-26-101).


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The foregoing is an excerpt from Day on Torts: Leading Cases in Tennessee Tort Law, published by John A. Day, Civil Trial Specialist, Fellow in the American College of Trial Lawyers, recipient of Best Lawyers in America recognition, Martindale-Hubbell AV® Preeminent™ rated attorney, and Top 100 Tennessee Mid-South Super Lawyers designee. Read John’s full bio here.

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