Wrongful Death Statute of Limitations
Issue: Does a pro se complaint filed by the decedent’s surviving spouse toll the wrongful death statute of limitations?
Facts: Surviving spouse filed a pro se wrongful death action within the statute of limitations. An attorney then filed an amended complaint for the surviving spouse and the children. Defendants contend the initial complaint was a nullity because the surviving spouse was asserting claims in a representative capacity and the complaint was not signed by a licensed attorney. The trial court held the complaint was proper for the surviving spouse’s own claims. It also served to preserve the children’s claims because the amended complaint filed by an attorney related back to the original filing under Rule 15.
Appellate Decision: The intermediate court reversed and dismissed the lawsuit. The court held that the claims asserted by the surviving spouse were brought in a representative capacity on behalf of the decedent and were not his individual claims. Filing a complaint on behalf of another constitutes the practice of law and “[p]roceedings in a suit by a person not entitled to practice law are a nullity.” Bivins v. Hosp. Corp. of Am., 910 S.W.2d 441, 447 (Tenn. Ct. App. 1995). Because the complaint filed by the surviving spouse was a nullity, it did not toll the statute of limitations and no other complaint was filed within the statute of limitations. Therefore, the trial court erred in denying the hospital’s motion for summary judgment based on the statute of limitations defense.
Petition to Rehear was denied.
Review Granted: September 22, 2016.
Prediction: Ben thinks that the interests of fairness may compel the supreme court to reverse and allow the lawsuit to continue. While the wrongful death claim belongs to the decedent, the claim may be instituted by a surviving spouse in the surviving spouse’s own name. A non-attorney may proceed in court pro se for their own claim. It seems hypertechnical to allow a non-attorney to bring their own claim but not a claim as a personal representative, especially where the defendants properly received notice of the actual claim.