§78.4 Impact of Grant of Durable Power of Attorney on Statute of Limitations
The Case: Sullivan ex rel v. Wrongful Death Beneficiaries of Sullivan v. Chattanooga Medical Investors, LP, 221 S.W.3d 506 (Tenn. 2007).
The Basic Facts: Terry Sullivan had a durable power of attorney from his father Charlie Sullivan. Terry had the right to pursue claims and litigation. The power of attorney survived the disability and incompetence of Charlie. Charlie became mentally incapacitated and resided at defendant's nursing home between April 19, 2001 and August 11, 2001. He died on November 26, 2001. Terry filed suit against the nursing home on November 29, 2001, within a year of Charlie's death but more than one year after Charlie left defendant's nursing home. Defendant maintained the suit was barred by the statute of limitations.
The Bottom Line:
- "The statute of limitations for personal injuries, including wrongful death actions, is governed by Tennessee Code Annotated 28-3-104(a)(1), which provides that the action shall be commenced within one year after it has accrued. See Collier v. Memphis, Light, Gas & Water Div., 657 S.W.2d 771, 774 (Tenn. Ct. App.1983) (citing Jones v. Black, 539 S.W.2d 123, 126 (Tenn.1976)). The complaint against Centerville Health 509 Care was filed over a year after Charlie Sullivan was transferred from Centerville Health Care. Therefore, unless the statute of limitations was tolled, the claims against Centerville Health Care are time-barred." 221 S.W.3d at 508-9.
- "Tennessee Code Annotated section 28-1-106 (the "Tolling Statute") provides the following:
If the person entitled to commence an action is, at the time the action accrued, either under the age of eighteen (18) years, or of unsound mind, such person, or such person's representatives and privies, as the case may be, may commence the action, after the removal of such disability, within the time of limitation for the particular cause of action, unless it exceeds three (3) years, and in that case within three (3) years from the removal of such disability.Id. at 509.
- "The purpose of the statute is 'to declare that statutes of limitation do not begin to run until a person's disability is removed.' Arnold v. Davis, 503 S.W.2d 100, 102 (Tenn.1973). Applying section 28-1-106, the Court of Appeals held that the statute of limitations was tolled due to Charlie Sullivan's mental incapacity during the time that he was in the care of Centerville Health Care and until his death. See Abels ex rel. Hunt v. Genie Indus., Inc., 202 S.W.3d 99, 105 (Tenn.2006) ('The disability of unsound mind is removed when the individual is no longer of unsound mind, due to either a change in the individual's condition or the individual's death.')." Id.
- "Centerville Health Care's first argument is that the Tolling Statute does not apply in this case because 'the person entitled to commence [the] action' was Terry Sullivan, who was mentally competent during all relevant times. After examining the language of the statute and the relevant case law, we conclude that Terry Sullivan is not "the person entitled to commence an action" within the meaning of the Tolling Statute." Id.
- "If we were to construe the language in the Tolling Statute-"the person entitled to commence an action"-to include anyone with the authority to commence an action, the Tolling Statute would never apply in any case when a person is deemed to have the authority to act for someone who is disabled because of age or unsound mind. Such a construction would conflict not only with the purpose of the statute but also with our previous jurisprudence, holding that the appointment of a guardian or conservator does not affect the tolling of a statute of limitations. See Abels ex rel. Hunt v. Genie Indus., Inc., 202 S.W.3d 99, 103 (Tenn.2006). In addition, all minors have some person, either a guardian or a parent or a next friend, who has the authority to file a lawsuit on their behalf. It is our opinion, therefore, that "the person entitled to commence an action," refers to the person who suffered the legal wrong or to whom the claim belongs. Accordingly, we hold that the statute of limitations is tolled for purposes of the Tolling Statute for so long as the person to whom the claim belongs is under a disability because of age or unsound mind." Id. at 510.
- "Although Terry Sullivan was a person who had the authority to commence the action by virtue of the durable power of attorney, Terry Sullivan was not the 'person entitled to commence [the] action' within the meaning of the Tolling Statute. In Tennessee, a wrongful death action belongs to the deceased person and not to his survivors. See Lynn v. City of Jackson, 63 S.W.3d 332, 335 (Tenn.2001) (recognizing that the Tennessee 'wrongful death statute does not create a new cause of action in the beneficiaries'); Jones v. Black, 539 S.W.2d 123, 124-25 (Tenn.1976) (affirming that in a wrongful death action, there is only one right of action, and it belongs to the deceased). The only "person entitled to commence an action" in this case was Charlie Sullivan, the person who owned the claim. Because Charlie Sullivan was mentally incapacitated while he was a resident at Centerville Health Care, the statute of limitations remained tolled until the disability was removed. See Abels, 202 S.W.3d at 103 ('[T]he statute of limitations remains tolled despite the possibility that some representative could bring the action on the plaintiff's behalf.'). Id. at 511.
- "Centerville Health Care's second argument is that even if the Tolling Statute applies to Charlie Sullivan, it did not operate in this case to toll the statute of limitations because Charlie Sullivan's disability was removed at all times by the existence of the durable power of attorney. According to Centerville Health Care, the language in the Uniform Durable Power of Attorney Act ("UDPAA") evidences an intent to remove the protection of the Tolling Statute for disabled persons, when a person before becoming disabled grants a durable power of attorney." Id.
- "In Abels, we rejected the defendant's argument that the appointment of a legal guardian removes an injured person's disability of "unsound mind" under Tennessee Code Annotated section 28-1-106. 202 S.W.3d at 102. We held that the 'disability of unsound mind . . . is not removed when the disabled person's representative is appointed and/or accepts responsibility for the disabled person's tort claims. Rather, the tolling of the statute of limitations continues until the disabled person's mind becomes 'sound,' or the person dies.' Id. at 105." Id. at 513.
- "Applying the same reasoning in this case, we reject Centerville Health Care's argument that Charlie Sullivan's execution of a durable power of attorney to Terry Sullivan prior to his mental incapacitation removed his disability of "unsound mind" within the meaning of the Tolling Statute. We hold that Charlie Sullivan's disability continued until his death and was uninterrupted by the existence of a durable power of attorney." Id.