Victoria Dutton v. Farmers Group, Inc. - Concurring

• Court: Court of Appeals of Tennessee
• Decided: June 22, 2010
• Docket: E2009-00746-COA-R3-CV
• Status: Published

Opinion

IN THE COURT OF APPEALS OF TENNESSEE AT KNOXVILLE November 3, 2009 Session

VICTORIA DUTTON ET AL. v. FARMERS GROUP, INC., ET AL.

Appeal from the Circuit Court for Knox County No. 3-278-08 Wheeler A. Rosenbalm, Judge

No. E2009-00746-COA-R3-CV - FILED JUNE 22, 2010

C HARLES D. S USANO, JR., J., concurring.

I agree with the majority that, given the present state of the record in this case, summary judgment is not appropriate. As the record now stands, “[w]hether the plaintiff[s] exercised reasonable care and diligence in discovering the injury or wrong is . . . a fact question for the [trier of fact] to determine.” Wyatt v. A-Best Company, 910 S.W.2d 851, 854 (Tenn. 1995). In other words, there is a genuine issue as to this material fact. At trial, the finder of fact must determine if the plaintiffs filed suit within one year of the point in time when they1 first knew, or, in the exercise of reasonable diligence, should have known that an actionable injury had occurred. Id. at 856-57.

_______________________________ CHARLES D. SUSANO, JR., JUDGE

1 While I have used the plural “they,” it is clear that each claim must be separately evaluated as to this issue.