One of the often discussed issues when a tort occurs involving an out-of-state party is the ability to serve their party within a timely fashion and meet the statute of limitations and properly commence the action. Ohio has specific civil rules and specific statutes that address both the time frame for bringing a lawsuit and a time for commencing the lawsuit. Usually, while the case can be filed timely under the statute of limitations, the issue of commencement and service on the party can create unexpected results.
One such unexpected result occurred for the Plaintiffs’ in Garrett v Gill, 2011-Ohio-3449. The case began as a relatively simple auto accident involving a Plaintiff who was a passenger in a vehicle driven by a Kentucky resident. The accident occurred on March 5, 2005, and the Plaintiff filed suit on March 5, 2007, within the statute of limitations. Plaintiff filed suit against the owner of the vehicle and the driver of the vehicle, as well as their insurers.
Once a suit is filed, the Civil Rules control. Civil Rule 3(A) provides that “[a] civil action is commenced by filing a Complaint with the Court, if service is obtained within one year of such filing upon a named Defendant”. Accordingly, to comply with the statute of limitations, a cause of action is commenced if the action is filed within the applicable limitations period and service is obtained within one year from the filing of the Complaint.
While the above appears to be relatively straightforward, R.C. 2305.15 provides a tolling of the statute of limitations when a person leaves the state or conceals oneself from service. A quick reading of the statute may give the impression that R.C. 2305.15 also tolls the time for commencement.
The Plaintiff in Garrett v. Gil argued for that interpretation. After filing the suit within the applicable two year statute of limitations, Plaintiff attempted, but was unable to obtain, service upon the defendants. Ultimately, Plaintiff retained a special process server on March 19, 2008, more than one year after the filing of the suit, who did obtain service upon the defendants. The defendants filed a Motion to Dismiss, which the Court converted to a Motion for Summary Judgment.
The Trial Court held that the matter was not properly commenced. The disappointed Plaintiff appealed to the Court of Appeals, who affirmed the Trial Court’s decision.
The Court of Appeals reviewed the limited question of whether the case was properly commenced. Reviewing the applicable statute and civil rules, the Court concluded, based upon the Ohio Supreme Court case of Sanders v Choi, that R.C. 2305.15 does not apply to toll the limit set forth in the Civil Rules, and specifically the one year limitation in which to commence an action. Since Plaintiff did not obtain service within one year of filing the Complaint, the action was never properly commenced. Since the two year statute of limitations applicable to the action had passed, Plaintiff lost any opportunity to pursue the claim.
The seminal point to recall from this case is that when an out-of-party Defendant is involved in a matter, Plaintiff still has the duty to perfect service within one year of the commencement of the suit. R.C. 2305.15 will not toll the time to commence a suit by obtaining service once the case is filed. The unanswered question by this Court of Appeals is whether R.C. 2305.15 would have permitted Plaintiff to defer the filing of this suit due to the defendants leaving the state.
If you have any questions, please contact one of our General Casualty/Excess and Surplus Lines Practice Group Members.