Miss the statute of limitations (SOL) and your are s**t-out-of-luck (SOL).
If a lawsuit is not filed and served by the statute of limitations deadline the case is lost forever regardless of how much merit it may have had. No matter how serious the injury, no matter how unforgivable the fault – the personal injury claim is gone.
Some wait to the last minute to find and attorney to file and serve their personal injury case. This sometimes leads to a train-wreck – a dismissed case; a lost appeal. Every year several Court of Appeals cases fit this description. Here is a quick review of the SOL cases decided by the Washington State Court of Appeals in 2012.
Oh, brother! The personal injury plaintiff filed the case about a week SOL ran. By law there is a 90-day period in which to serve the defendant. The pleadings were erroneously served at the house of the defendant’s brother, rather than the defendant’s house. The defendant had never lived at the brother’s home. By the time the personal injury plaintiff realized service was erroneous, the 90-day period had run. The case was dismissed by the trial court and the dismissal upheld on appeal.
My personal-injury-case has fallen, and it can’t get up. A woman fell on loose carpet in her apartment. She sued the apartment complex. Her attorney amended the original complaint alleging new theories of liability, but apparently failed to serve the amended complaint. Although the apartment complex did in fact receive a copy of the amended complaint along with the motion to amend, the amended complaint was never formally served. The case was dismissed, a result upheld on appeal.
Return to sender. A woman was injured in an automobile accident. She filed a lawsuit only four days before the SOL deadline. Per statute there is a 90-day period to serve the other driver. The address the attorney had for the other driver was out-of-date. The attorney served a subpoena on the other driver’s insurance company demanding an up-to-date address. They supplied the same address. He then moved for the court to allow service on a PO Box. The motion was denied because a) the attorney failed to produce evidence of efforts made to find the defendant and b) service by mail to a post office box is not authorized by statute. This SOL ran, the case was dismissed, and the court awarded fees to the defendant and his insurance company. This result was upheld on appeal.
And here is one of our favorites from previous years.
What’s in a name? Elisabeth was involved in an auto accident in which it was alleged she injured someone. The complaint named Elizabeth and served Elizabeth at Elizabeth’s home. Elizabeth is Elisabeth’s mother. Elisabeth did not live with Elizabeth. By the time the attorney realized what had happened the SOL had run. The claim was dismissed. In upholding the dismissal the Court of Appeals noted that this case is different from misnomer cases where the correct person is served and the documents clearly refer to the correct person, but there is a typo in the name. In this case the attorney named the wrong person and served that wrong person at that wrong person’s home, not the correct person’s home. In other words, there really was an Elizabeth and it was Elizabeth who was both named and served, which is a different scenario from serving the right person and simply misspelling the name.
Every year you can count on several statute of limitations cases going up on appeal. These cases usually do not go well for the personal injury claimant (“plaintiff” in legalese).
The problem arises when the personal injury case is filed and served at the last minute, only to find out too late that service was not good. Even if the documents were actually received, if service is not up to legal requirements the case is dismissed. If the statute of limitations deadline has run in the meantime, there is no lawsuit – no matter how meritorious it may have been. It’s over.
The statute of limitations in Washington for personal injury claims is generally three years. A lot can happen in three years. People move. Marry and change names. Mistakes happen. The process server goes to the wrong house. Or, the process server serve a relative with a similar name.
The best way to avoid these train wrecks is to file and serve well in advance. Our policy is whenever possible to file and serve any lawsuit at least six months before the SOL runs, so we are never SOL in the other sense.
– Travis Scott Eller is a personal injury attorney in Washington state.
Cheesman v. Rowse, unpublished opinion (No. 66134-5-I FILED: April 23, 2012).
Hill v. Windsong Village Apartments, unpublished opinion (No. 66662-2-I April 25, 2011).
Defelice v. Jones, unpublished opinion (No. 29231-2-III).
Herrick v. Loeliger, (62947-6-I, filed December 21, 2009).