Case Law Update: Words Matter

In Omobien v. Flinn, (9th Dist.) 2021-Ohio-2096, the Ohio Ninth District Court of Appeals upheld the dismissal of a re-filed personal injury lawsuit on the basis that the Complaint failed to contain allegations setting forth an exception to the 2-year statute of limitations.

In Ohio, the statute of limitations on personal injury claims is two (2) years. See R.C. 2305.10(A).

In Omobien, the plaintiffs were in a motor vehicle collision on March 11, 2016. Applying the two-year statute of limitations, they would have to file their lawsuit by March 11, 2018. The Omobiens did, in fact, timely file a lawsuit within the two-year statute of limitations. Here’s where it gets interesting.

On May 8, 2019, the Omobiens voluntarily dismissed their initial lawsuit. Since the case was already timely filed but voluntarily dismissed - meaning the plaintiffs chose to dismiss the claim with the ability to re-file - Ohio’s Savings Statute, R.C. 2305.19(A) would apply to the time to re-file the action. The Savings Statute states:

(A) In any action that is commenced or attempted to be commenced, if in due time a judgment for the plaintiff is reversed or if the plaintiff fails otherwise than upon the merits, the plaintiff or, if the plaintiff dies and the cause of action survives, the plaintiff's representative may commence a new action within one year after the date of the reversal of the judgment or the plaintiff's failure otherwise than upon the merits or within the period of the original applicable statute of limitations, whichever occurs later. This division applies to any claim asserted in any pleading by a defendant.

Applying the Savings Statute, the Omobiens would have the ability to re-file their Complaint on or before May 8, 2020. The Omobiens did just that and re-filed their Complaint on May 8, 2020.

So what was the issue? In the re-filed Complaint, the Omobiens failed to plead an exception to the statute of limitations, i.e., facts that would show the Savings Statute applies. For example: “Plaintiffs previously filed a Complaint on _________ in Summit County Case # ________ which was voluntarily dismissed on May 8, 2019. Plaintiffs are re-filing this action pursuant to the time limitations in R.C. 2305.19(A).” That would have been sufficient, however, based upon the four corners of the re-filed Complaint, the trial court applied the two-year statute of limitations and dismissed the re-filed Complaint.

The Ohio Ninth District Court of Appeals affirmed the dismissal and the opinion is below.

COVID-19: Ohio General Assembly Passes HB 197 Tolling the Statute of Limitations

Original post was dated March 27, 2020 - please continue reading towards end for future updates.

In response to the COVID-19 pandemic, the General Assembly has passed House Bill 197 to provide relief in many areas of our lives (i.e. unemployment benefits, extending primary voting, school testing, etc.) which have been devastated.    

For civil claimants and litigants, H.B 197 tolls several important dates:

• The statute of limitations for claims set to expire between March 9, 2020, and July 30, 2020;

• The time within which discovery or any aspect of discovery must be completed; and

• The time within which a party must be served.

Tolling is a legal doctrine which effectively pauses the clock on any legal time period.   The provisions of H.B. 197 – if signed into law – apply retroactively to the date of the emergency declared by Executive Order 2020-01D, issued on March 9, 2020 and will expire on the date the period of emergency ends or July 30, 2020, whichever is sooner.

On its surface, H.B. 197 provides much-needed relief for civil claimants and litigants in these uncertain times.  However, there are many questions still to be answered:

• For example, if there is a current statute of limitations to expire on May 1, 2020, does the claimant get the benefit of the tolling period (i.e. 143 days) after the date the period of emergency ends or July 30, 2020, whichever is sooner?  

• Or is it calculated from May 1st, the original statute of limitations?

• Or must he or she file immediately on Friday July 31, 2020 or the day after the order is lifted if sooner than July 30th?

• For medical and dental malpractice claimants, how does H.B. 197 effect the time period in which one must serve a doctor, hospital or health provider with a 180-day letters?

• How does the delay in discovery effect important dates in pending litigation like dispositive motion deadlines, expert deadlines, and trial?  

This is a developing area of law and I will strive to provide updates, clarity and guidance as new information emerges. 

House Bill 197 is awaiting Governor DeWine’s signature.

UPDATE - March 30, 2020 - 1:00 P.M. - On Friday, March 27, 2020, Governor DeWine signed H.B. 197 into law. Questions still remain, however, here are a number of useful resources:

• Chief Justice Maureen O’Connor’s Tolling Order filed March 27, 2020

• Ohio State Bar Association’s Court-by-Court COVID 19 Resource Guides

• Ohio State Bar Association’s COVID-19 Resource Directory

• Ohio Judicial Conference’s COVID-19 Emergency Planning

UPDATE - July 14, 2020 - 11:26 A.M. - As previsouly discussed, the tolling provisions of HB 197 will expire on the date Governor DeWine rescinds Executive Order 2020-01D, issued on March 9, 2020, or July 30, 2020, whichever is sooner. Please keep in mind, Executive Order 2020-01D is different from orders issued by the Ohio Department of Health. Since it does not appear that Governor DeWine is going to rescind the EO before then, the tolling will continue to July 30, 2020 at which point it expires.

It is important to know that only statutes of limitations that fall between March 9, 2020 and July 30, 2020, are tolled. If your statute of limitations is July 31, 2020 or later, HB 197 does not toll your time and you should file your case on or before the original statute of limitations date. For the statute of limitations that have been tolled under HB 197, the new statute of limitation can be calculated by:

1. Counting the number of days from March 9, 2020 to the original statute of limitation date

2. Adding that number to July 30, 2020

For example, if your original statute of limitation was March 20, 2020, you add 11 days (March 9th to March 20th) to July 30, 2020 and arrive at your new statute of limitation date of Monday, August 10, 2020.  

Please be sure to check out The OAJ and the Ohio Supreme Court websites for additional resources on this topic on their COVID-19 Resources pages.

Statute of Limitations for Survival Claims in Ohio

Ohio wrongful death attorney, Scott Kuboff, discusses the statute of limitations and how much time you have to file a survival claim following the death of a loved one.

DISCLAIMER: This video is for educational purposes only and should not be construed as legal advice as to the statute of limitations in your case. If you want to know the statute of limitations applicable to your case, contact an attorney.

If you have a question on a survival claim, please contact Scott for a no cost, no obligation consultation and case evaluation.

Statute of Limitations for Wrongful Death Claims in Ohio

Ohio wrongful death attorney, Scott Kuboff, discusses the statute of limitations and how much time you have to file a wrongful death lawsuit.

DISCLAIMER: This video is for educational purposes only and should not be construed as legal advice as to the statute of limitations in your case. If you want to know the statute of limitations applicable to your case, contact an attorney.

If you have a question on a wrongful death claim, please contact Scott for a no cost, no obligation consultation and case evaluation.

Ohio Statute of Limitations for Dog Bite Claims

Ohio personal injury attorney, Scott Kuboff, discusses the statute of limitations and how much time you have to file a lawsuit for injuries related to a dog bite.

DISCLAIMER: This video is for educational purposes only and should not be construed as legal advice as to the statute of limitations in your case. If you want to know the statute of limitations applicable to your case, contact an attorney.

If you have sustained an injury as a result of a dog bite or attack, please contact Scott for a no cost, no obligation consultation and case evaluation.

Extending the Statute of Limitations for Dental Malpractice

Ohio dental malpractice attorney, Scott Kuboff, discusses "180-day" letters and how they are used to extend the statute of limitations if properly served.

DISCLAIMER: This video is for educational purposes only and should not be construed as legal advice as to the statute of limitations or how to properly serve a 180-day letter. If you want to know that information, contact an attorney.

If you have sustained an injury following a dental procedure, please contact Scott for a no cost, no obligation consultation and case evaluation.

What is the Statute of Repose for Dental Malpractice in Ohio

Ohio dental malpractice attorney, Scott Kuboff, discusses the statute of repose and how much time you have to discover a dental injury before your claim is barred.

DISCLAIMER: This video is for educational purposes only and should not be construed as legal advice as to the statute of repose in your case. If you want to know the statute of repose applicable to your case, contact an attorney.

If you believe you are a victim of dental malpractice, please contact Scott for a no cost, no obligation consultation and case evaluation.

Ohio Statue of Limitations for Civil Assault and Battery

Ohio personal injury attorney, Scott Kuboff, discusses the statute of limitations and how much time you have to file a lawsuit for injuries related to a civil assault and battery.

DISCLAIMER: This video is for educational purposes only and should not be construed as legal advice as to the statute of limitations in your case. If you want to know the statute of limitations applicable to your case, contact an attorney.

If you have sustained an injury as a result of a civil assault or battery, please contact Scott for a no cost, no obligation consultation and case evaluation

Ohio Statute of Limitations for Slip-and-Fall and Trip-and-Fall

Ohio personal injury attorney, Scott Kuboff, discusses the statute of limitations and how much time you have to file a lawsuit for injuries related to a slip-and-fall or trip-and-fall.

DISCLAIMER: This video is for educational purposes only and should not be construed as legal advice as to the statute of limitations in your case. If you want to know the statute of limitations applicable to your case, contact an attorney.

If you have sustained an injury in a slip-and-fall or trip-and-fall, please contact Scott for a no cost, no obligation consultation and case evaluation.

What is the Statute of Limitations for Dental Malpractice in Ohio

Ohio dental malpractice attorney, Scott Kuboff, discusses the statute of limitations and how much time you have to file a lawsuit for injuries related to dental negligence.

DISCLAIMER:  This video is for educational purposes only and should not be construed as legal advice as to the statute of limitations in your case.  If you want to know the statute of limitations applicable to your case, contact an attorney.

If you believe you are a victim of dental malpractice, please contact Scott for a no cost, no obligation consultation and case evaluation.