Last week we saw the pitfalls of not following the rules. This week's case seems to suggest that not all rules mean what they say. Further, this week's case reinforces that there are differences between how States look at similar issues. In Arden v. Kozawa, et al., the Tennessee Supreme Court ultimately held that pre-suit notice by FedEx, a commercial carrier, was "substantial compliance" with a Tennessee statute that specifically required service by the United States Postal Service. In other words, close was indeed good enough.
In a medical malpractice case, a Plaintiff must provide the medical professional with pre-suit notice at least sixty days before filing suit. This is mandated by statute and the failure to do so will result in dismissal of the case. Tennessee Code Section 29-26-121(a)(4) states in part that pre-suit notice "shall be demonstrated by filing a certificate of mailing from the United States [P]ostal [S]ervice stamped with the date of mailing…return receipt requested." This statute, at least facially, seems clear, and the Monroe County Circuit Court as well as the Eastern Section of the Court of Appeals thought it meant what it said.
The Tennessee Supreme Court, however, disagreed with both lower courts and found that a Plaintiff who provided pre-suit notice to a medical professional via FedEx substantially complied with the statute and was permitted to proceed forward with his case. Thus, U.S. Post Office apparently also means FedEx.
On a side note, I remember dealing with a similar issue in Ohio regarding service of process for a lawsuit. At that time, the Summit County Clerk of Courts routinely served complaint summons by FedEx, even if the attorney requested service by the U.S. Post Office as mandated by the Ohio Civil Rules. Eventually, one such case was appealed and the Ninth District Court of Appeals found the exact opposite as the Arden Court discussed above. Instead of accepting "substantial compliance", the Ninth District observed that "[a]lthough a defendant's continued insistence on precise technical compliance with the Civil Rules pertaining to service may seem to be a dilatory tactic designed to unnecessarily prolong the litigation…perfection of service of process is the plaintiff's responsibility and a defendant has no duty to assist…in fulfilling this obligation." In other words, if the statute required service by U.S. Mail, then FedEx wouldn't cut it and the case was dismissed. J. Bowers Constr. Co. v. Vinez, 2012-Ohio-1171, ¶ 17 (internal citations and quotations omitted).
The moral of these two cases: read and follow the rule first. But, if you don't, you may be able to argue you "substantially complied" with the rule. However, if this excuse didn't work in school, your safest bet is not counting on it working in the real world either.