Lipscomb v Doe
| Citation | 32 S.W.3d 840 |
| Decision Date | 30 November 2000 |
| Docket Number | 97-00132 |
| Parties | CASSANDRA LYNN LIPSCOMB v. JOHN DOEIN THE SUPREME COURT OF TENNESSEE AT JACKSON |
| Court | Supreme Court of Tennessee |
Appeal by Permission from the Court of Appeals, Western Section Circuit Court for Shelby County Nos. 81763-8 T.D., 85203-8 T.D.
The primary issue in this case is whether a plaintiff properly initiates suit pursuant to the "John Doe" provisions of the uninsured motorist statutes when (1) the plaintiff is aware that the driver of the other vehicle is one of several persons, but (2) the plaintiff does not actually know which of the other possible drivers was responsible for the accident. The trial court dismissed the original "John Doe" complaint, finding that because the plaintiff was aware the other driver was one of three people, the other driver was not "unknown" within the meaning of the "John Doe" provisions. The trial court also denied the plaintiff's motion to amend her complaint pursuant to Tennessee Rule of Civil Procedure 15 and Tennessee Code Annotated section 20-1-119. The Court of Appeals affirmed the dismissal of the "John Doe" complaint, holding that because the plaintiff was not entitled to a remedy against the actual uninsured motorists, then she was also without a remedy against her insurance carrier. Upon review of the record and the applicable legal authority, we hold that the plaintiff's suit was properly commenced under the "John Doe" provisions of the uninsured motorist statutes. The judgment of the Court of Appeals is reversed, and this case is remanded to the Shelby County Circuit Court for further proceedings consistent with this opinion.
A. Wilson Wages, Millington, Tennessee, for the appellant, Cassandra Lynn Lipscomb.
Fred P. Wilson, Memphis, Tennessee, and Stuart A. Wilson, Memphis, Tennessee, for the appellee, Amerisure Companies.
John A. Day, Nashville, Tennessee, and John D. Wood, Nashville, Tennessee, for amicus curiae, Tennessee Trial Lawyers Association.
WILLIAM M. BARKER, J., delivered the opinion of the court, in which, E. RILEY ANDERSON, C.J., and ADOLPHO A. BIRCH, JR., J., joined. JANICE M. HOLDER, J., filed a dissenting opinion. FRANK F. DROWOTA, III, J., not participating.
OPINIONOn the early morning of September 24, 1995, the plaintiff, Cassandra Lynn Lipscomb, completed her night-shift at work and ate an early breakfast with several of her friends. At about 5:00 a.m., the plaintiff started her trip home to Memphis, and at some point during this journey, her car was struck from behind by another car. This other car struck the plaintiff several more times before finally forcing her off of the road. The other car had three occupants, one of whom went to the plaintiff's car and shot the plaintiff in the chest through the car window. After stealing the plaintiff's money and her cellular phone, the three individuals left the plaintiff to die on the side of the road.
After her attackers left, the plaintiff, who apparently did not realize that she had been shot, ran to a nearby phone to call the police. While dialing the phone, she saw blood coming from her chest, causing her to collapse into unconsciousness. Arriving shortly thereafter, the police rushed the plaintiff to the hospital, where doctors discovered that the bullet was lodged between her heart and lungs. The plaintiff remained hospitalized for a week and was released.
Within days of the plaintiff's shooting, officers of the Memphis Police Department arrested three individuals believed to be the persons involved in the plaintiff's accident and shooting. These three individuals, Antonio Chaney, James Logan, and Cory Dyson, were charged with attempted murder and aggravated robbery. In a later criminal proceeding arising out of this episode, Cory Dyson apparently admitted to being the driver of the car causing the plaintiff's accident.1
On October 7, 1995, the Memphis Commercial Appeal ran an article containing an interview with the plaintiff following her release from the hospital. The newspaper article also listed the names and addresses of three individuals arrested and charged with the plaintiff's robbery and attempted murder. About a month after the printing of the article, the plaintiff contacted her uninsured motorist carrier, Amerisure Companies, and informed an agent of Amerisure of the names of the suspects arrested and charged with her attack. In addition, the plaintiff told the Amerisure agent that the names and addresses of her alleged assailants were contained in the October 7 Commercial Appeal article, and she faxed a copy of the article to Amerisure.
On September 24, 1996, the plaintiff filed suit under the uninsured motorist statutes claiming damages sustained in her attack, which occurred exactly one year earlier. Pursuant to Tennessee Code Annotated section 56-7-1206(b), she named "John Doe" as the nominal defendant, alleging that the accident was "caused by an unknown driver who left the scene of the accident." The plaintiff, who made no specific mention of Chaney, Logan, or Dyson in her allegations, also forwarded a copy of the complaint and summons to Amerisure.
Amerisure filed an answer in its own behalf as the plaintiff's uninsured motorist insurer, and alleged that the "name of the driver of the [other] vehicle was known or should have been known to the plaintiff prior to the filing of the lawsuit . . . ." Pursuant to Tennessee Rule of Civil Procedure 36, Amerisure also requested that the plaintiff admit, among other things, that she knew (1) that an article appeared in the Commercial Appeal on October 7, 1995 which contained the names and addresses of her attackers; (2) that the Memphis Police Department arrested and charged these individuals with her attack after investigation of the accident; and (3) that the plaintiff knew "the names and addresses of the person or persons who struck the rear of [her] car and shot [her] on September 24, 1995."
In her response to the requests for admission, the plaintiff admitted the existence of the Commercial Appeal article and that the Memphis police arrested and charged the persons mentioned in the article. The plaintiff specifically denied, however, that she knew who actually drove the car the morning of her attack. In response to the last request for admission, the plaintiff stated:
On December 5, 1995, Amerisure filed a motion to dismiss the complaint, alleging among other things, that "the plaintiff has failed to comply with the requirements of [Tennessee Code Annotated section] 56-7-1201 et seq." More specifically, Amerisure argued that because the plaintiff was aware that the driver of the other car was one of three people, the "John Doe" provisions of Tennessee Code Annotated section 56-7-1206 could not be properly used. The plaintiff then moved to amend her complaint pursuant to Tennessee Rule of Civil Procedure 15 and Tennessee Code Annotated section 20-1-119 to allege a cause of action against Dyson, Logan, and Chaney as defendants. The amended complaint asserted that the
On February 13, 1997, Amerisure filed motion to dismiss any claims asserted by the plaintiff against Dyson, Logan, and Chaney, and by consent of the parties, the trial court consolidated all motions pending before it. After holding hearings on the issues presented by the motions, the trial court granted Amerisure's motion to dismiss the plaintiff's original complaint on October 31, 1997 for improper use of the "John Doe" procedures. The trial court also denied the plaintiff's motion to amend the complaint pursuant to Rule 15 or section 20-1-119.
The Court of Appeals affirmed the judgment of the trial court in all respects. Addressing the amendment issue first, the court held that Rule of Civil Procedure 15 could not be used to amend the complaint because Dyson, Logan, and Chaney were not given notice of the pendency of the suit "within the applicable statute of limitations or within 120 days after commencement of the action" as required by the rule. Moreover, the court held that section 20-1-119 could not be used to assert a claim against Dyson, Logan, or Chaney, because the statute "is applicable only when the plaintiff is unaware of the fault of the third party at the time the plaintiff filed his or her complaint." As to the proper use of the "John Doe" procedures, the Court of Appeals held that the plaintiff's "John Doe" complaint was properly dismissed because the plaintiff had no remedy against the driver(s) of the other car. The court then reasoned that the "John Doe" procedures could not give a plaintiff greater rights against the insurance carrier than the plaintiff would have against the uninsured motorist. The Court of Appeals did not address whether the plaintiff's "John Doe" complaint was properly filed in the first instance.
The plaintiff then requested, and we granted, permission to appeal on the following issues: (1) whether the plaintiff's "John Doe" suit was properly dismissed; and (2) whether the trial court properly denied the plaintiff's motion to amend her original complaint to add additional defendants pursuant to Rule of Civil Procedure 15 or Tennessee Code Annotated section 20-1-119. For the reasons given herein, we hold that the plaintiff's initial "John Doe" suit was properly filed. Because this issue is dispositive of the other issues in this case, we reverse the judgment of ...
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