Zimmer, Duncan & Cole

Deadline Pushers Litigate at Own Risk

A car accident victim’s lawyer waited until the last possible moment to start a lawsuit, creating problems for miles around.  The South Dakota Supreme Court heard the arguments in the case of Jill Robinson v. Michelle Mitchell and Chelsey Ewalt. (2012 S.D. 1).

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I’ve said it before in this column:  Every Legal Claim Has a Shelf Life.  If you miss the deadline to file your lawsuit, you are completely out of luck. For this week’s case, the magic number is three years, plus a possible 60-day extension.
Our story begins with a three-car accident on April 28, 2007.  A high school student, Chelsey Ewalt, rear-ended Michelle Mitchell, who, in turn, rear-ended the car in front of her, and injuring its driver, Jill Robinson. Three years minus one week later, Ms. Robinson’s lawyer attempted to start a lawsuit against the other two drivers.
Legally speaking, a lawsuit is started by serving of summons.  The “summons” is a single sheet of paper, which loosely translated says, “You are being sued; you have 30 days to respond in writing to the claims against you; if you don’t, the other side wins by default.” The summons is “served” when it is handed to you either by the sheriff or by a process server (someone who professionally tracks down defendants.  It’s a thankless job, but it leads to many great stories, such as the one where a process server pretended to have a toothache in order to serve an evasive dentist.)
In our car accident story, the middle driver (Ms. Mitchell) was served by the sheriff on April 24, 2010.  This was four days before the deadline, which was cutting it close, but still valid. Serving the other driver, Chelsey, would not be as easy.  In addition, it would involve an exception to the three-year time limit.  That exception provides a sixty-day extension to the three-year window. The extension is allowed when, prior to the normal deadline, the summons is delivered to the sheriff of the county where the defendant “usually or last resided.” In Chelsey’s case, it turns out that “where she usually or last resided” wasn’t immediately obvious. A year after the accident, Chelsey graduated from high school and moved away from Yankton County to Minnehaha County, then back to Yankton County, then to Sioux City, Iowa, until finally moving to Watertown, South Dakota, which is in Codington County. Meanwhile, Chelsey continued to use her parents’ address in Yankton County for her driver’s license, her tax returns, and her bank statements.  A few months after her final move, she changed her driver’s license address to Codington County. Five days prior to the three-year deadline, a copy of the summons was given to the Yankton County sheriff to serve upon Chelsey. The sheriff’s office made contact with Chelsey by telephone, who said she would come to pick up the papers in person. She didn’t, however, and then the summons was eventually given to the Codington County sheriff (but not until after the three-year deadline had passed). After reviewing the facts and the law, the trial judge ruled that Chelsey was a resident of Codington County, and therefore she was not served in time (because the summons wasn’t delivered to her “home” county sheriff until after the three-year deadline).  As a result, he dismissed the lawsuit against her.
Ms. Robinsion (the plaintiff) appealed this ruling.

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Questions of law can be decided by judges, while juries must decide questions of fact.  Therefore, if the facts are still in dispute, a judge is not allowed to rule, and must ask a jury to decide. In this appeal, the South Dakota Supreme Court faced a case where the facts weren’t in dispute, but the meaning of those facts was. The Court reversed the trial court’s decision, because a jury could view all of these facts and come to either conclusion:  that Yankton County either was or was not her “usual or last residence” at the time the sheriff received the summons. Therefore, a jury will need to sort this out at the same time as it hears and decides the underlying issues related to the car accident. The moral of any of these stories is to find a lawyer sooner, rather than later, to avoid any problems with the deadline.  In addition, ask your lawyer when the statute of limitations runs on your case, so that you know the issue is being addressed.

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 Finally, let me honor the memory and outstanding legal career of Bill Janklow.  I had only one case opposite him, and I will never forget it.

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Daniel K. Brendtro is a trial attorney and a partner in the Zimmer, Duncan & Cole law firm of Sioux Falls and Parker.  For those of you looking for a Zoe update, she is doing great, and the dog has formally accepted her into our family (by gently cleaning her toes).