 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Motorists Mut. Ins. Co. v. Huron Rd. Hosp.8/30/1995
imely for failure of commencement.
It has always been the desire of the courts and the General Assembly to have issues determined upon their merits rather than extinguished because of procedural constraints. Savings statutes have been created to afford plaintiffs an opportunity to bring a new action after the running of the limitations period when an effort to bring the original action in a timely manner fails otherwise than on its merits. For wrongful death actions, R.C. 2125.04 governs:
"In every action for wrongful death commenced or attempted to be commenced [within the statute of limitations] * * *, if the plaintiff fails otherwise than upon the merits, and the [statute of limitations] * * * has expired at the date of such * * * failure, the plaintiff * * * may commence a new action within a year of such date."
Appellants filed their complaint on October 13, 1988, two years after Ross's death. Accordingly, they had until October 13, 1989 to obtain service on appellees. That this was not done, or even attempted, is uncontroverted. Rather, the appellants voluntarily dismissed their claim pursuant to Civ.R. 41(A)(1) three days before the one-year period for service expired. Appellants refiled their wrongful death action on October 4, 1990.
Appellants need the protection of the savings statute in order for their action to survive. The wrongful death savings statute has two requirements: (1) the commencement or attempted commencement of the action before the expiration of the statute of limitations, and (2) a failure otherwise than upon the merits.
The mere filing of a complaint does not constitute an attempted commencement of an action for purposes of R.C. 2125.04. Service is too vital a part of commencement of a lawsuit for a party to be deemed to have attempted commencement without even attempting service. See Civ.R. 3(A) and 4(E).
A savings statute is not to be used as a method for tolling the statute of limitations. See Lewis v. Connor (1986), 21 Ohio St.3d 1, 21 OBR 266, 487 N.E.2d 285. Although this court has held that savings statutes should be liberally construed, the criteria of the statutes must be satisfied in order to prevent circumvention of the statute of limitations and unfairness to defendants never put on notice.
Since the appellants never commenced their first action, the protection provided by R.C. 2125.04 never attached. Thus, when appellants filed their complaint on October 4, 1990, they were nearly two years beyond the applicable statute of limitations. We therefore affirm the court of appeals' judgment on this issue.
Judgment affirmed.
MOYER, C.J., DOUGLAS, WRIGHT, RESNICK, F.E. SWEENEY and COOK, JJ., concur.
|