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§47.40 Transitional Plaintiffs - 120-Day Extension Applied to Saving Statute for Transitional Plaintiffs

The Case:  Rajvongs v. Wright, 432 S.W.3d 808 (Tenn. 2013).

The Basic Facts: Initial health care liability action was filed before the pre-suit notice requirements were enacted, then plaintiff took voluntary nonsuit. Plaintiff refilled action after the effective date of the pre-suit notice requirement. Defendant moved for summary judgment on basis that second suit was not filed within one year saving statute; plaintiff asserted that he was entitled to 120-day extension of saving statute.  The Court ruled that plaintiff’s second action was commenced at the filing of his second complaint, not at the time he sent pre-suit notice to defendant.  432 S.W.3d at 811.

The Bottom Line:

 

·   “Mr. Rajvongs accordingly falls within the narrow category of plaintiffs who filed their initial complaints prior to the effective date of section 29-26-121, dismissed their original actions, and refilled their actions after the effective date of the statute. We therefore must determine whether these ‘transitional’ plaintiffs who gave pre-suit notice are entitled to the 120-day extension although their original statutes of limitation and repose have expired.” 432 S.W.3d at 813.

 

·       “We have long recognized that the saving statute is not a statute of limitations or a statute of repose and that it operates independently. …However, a transitional plaintiff is not necessarily precluded from receiving the 120-day extension simply because section 29-26-121(c) makes no explicit reference to the saving statute.” Id.

 

·        “We are unable to conclude that the General Assembly would require transitional plaintiffs to provide pre-suit notice before refilling under the saving statute and yet deprive such plaintiffs of the 120-day extension. Considering the statutory scheme it ins entirety, we can only conclude that a transitional plaintiff who properly provides pre-suit notice is entitled to the same procedural benefits that section 29-26-121(c) makes available to a plaintiff filing an initial health care liability complaint.” Id. at 814.

 

Recent Cases:  Cannon ex rel. Good v. Reddy, 428 S.W.3d 795 (Tenn. 2014) (plaintiff initially filed before pre-suit notice requirement was enacted, non-suited, then filed two consecutive actions after the requirement went into effect; second complaint did not comply with pre-suit notice and certificate of good faith requirements, but third complaint did; during pendency of appeal, plaintiff dismissed second complaint; Court held that this transitional plaintiff who properly gave pre-suit notice prior to filing third complaint was entitled to 120-day extension in which to re-file her complaint); Johnson v. Floyd, No. W2012-00207-COA-R3-CV, 2014 WL 476792 (Tenn. Ct. App. Feb. 6, 2014) (saving statute extended by 120 days through compliance with pre-suit notice requirements).

 

 


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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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