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Malpractice “TRAP” Still Exists For 41A Dismissals-Wrongful Death
Post on September 1st, 2009

In 2004, the General Assembly closed a malpractice “trap” that was contained in the general savings statute, RC 2305.19. Prior to that change, a complaint that had been dismissed under Civil Rule 41A had to be re-filed either within one year from the date of the voluntary dismissal, or within the original terminating date of the statute of limitations for the claim, whichever was earlier. Thus, claims were time-barred when such dismissals were taken before the original statute of limitations had run, and the claim was not filed before the statute of limitations had run, although filed within one year of the 41A dismissal. Since that amendment, a complaint can be re-filed either within the original statute of limitations period, or within one year of the dismissal, whichever is greater.

However, the Supreme Court recently determined that for wrongful death claims, RC 2125.04 applies to claims being refiled, and not the general savings statute. The rule of law applied follows the pre-2004 amendment to 2305.19. Thus, when a complaint was re-filed within one year, but the two-year wrongful death statute of limitations expired after the dismissal, but before the case was re-filed, the claim was time-barred. Eppley, Adm. V. Tri-Valley School Dist. Bd. of Education, 2009-Ohio-1970. Attorneys filing such cases need to be aware of this still-existing trap.