Assuming a nonsuit had not been taken, if Plaintiff had simply reissued process on the first lawsuit after the one-year safety net provision had expired, his lawsuit would be subject to dismissal because Rule 3 was not complied with. See, e.g., Toney v. Cunningham, No. 02A01-9801-CV-00005, 1999 WL 188291 (Tenn.Ct.App. Apr. 6, 1999) (applying previous version of Rule 3). Plaintiff cannot circumvent his failure to comply with Rule 3 by filing a new lawsuit and then seeking the benefit of the liberal construction of the saving statute.

The court agrees. Equitable estoppel is generally a disfavored doctrine under Tennessee law. Toney v. Cunningham, No. 02A01-9801-CV-00005, 1999 WL 188291, at *2 (Tenn. Ct. App. Apr. 6, 1999) (citing Sexton v. Sevier Cnty., 948 S.W.2d 747, 750 (Tenn. Ct. App. 1997)(citing ACG, Inc. v. Se. Elevator, Inc., 912 S.W.2d 163, 170 (Tenn. Ct. App. 1995); Robinson v. Tenn. Farmers Mut. Ins. Co., 857 S.W.2d 559, 563 (Tenn. Ct. App. 1993)). The party invoking the doctrine has the burden of proving the elements applicable to the party to be estopped which include:

No application for permission to appeal to this Court was filed inKelly. Although we agree with Kelly that notice is an important consideration in the availability of the saving statute, it is not, however, a substitute for service of process when the Rules of Civil Procedure so require. As the Western Section Court of Appeals recognized in the unreported opinion of Toney v. Cunningham, No. 02A01-9801-CV-00005, 1999 Tenn. App. LEXIS 222 (Tenn.Ct.App. April 6, 1999), which was decided less than six months after its decision in Kelly and concerned a plaintiff's failure to serve process on a defendant within the time period permitted by Rule 3: No application for permission to appeal to this Court was filed inToney.

Mr. Powers seeks to rely upon precedent holding that negotiation or investigation of a claim by a defendant or defendant's insurer does not amount to a waiver of service. See Crump v. Bell, No. W1999-00673-COA-R3-CV, 2000 WL 987289 at *3 (Tenn. Ct. App. July 12, 2000) (determining that a liability insurer's act of negotiating with the plaintiff's counsel does not equate to a waiver of service); Toney v. Cunningham, No. 02A01-9801-CV-00005, 1999 WL 188291 at *3 (Tenn. Ct. App. Apr. 6, 1999) (holding that an agreement by the plaintiff's counsel and defendant's counsel that defendants would belatedly file an answer does not amount to waiver of service of process); Occhipinti v. Stephens, No. 01-A-01-9504-CV-00133, 1995 WL 571849 at *3 (Tenn. Ct. App. Sept. 29, 1995) (finding no equitable estoppel when "the proof shows only that plaintiffs' counsel assumed that it was not necessary to get the defendant served; and that assumption was based on the fact that the insurance adjuster said it didn't matter to him whether the defendant was served or not."). We find this precedent to be unavailing in this matter, however, because of evidence existing of an actual agreement between the Clarks' counsel and The General to forbear service of process until settlement negotiations had ended.

Id. At 783. In Toney v. Cunningham, No. 02A01-9801-CV-00005, 1999 WL 188291 (Tenn.Ct.App. April 6, 1999), this Court considered the question of equitable estoppel in connection with the plaintiff's noncompliance with Rule 3. In Toney, the plaintiff filed a wrongful death action on May 26, 1995, against Pearcy and Mary Ward, and others.