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New Developments Clarify Saving Statute, Statute of Repose, & Vicarious Liability
Post on July 25th, 2024

Two recent developments in July impact the filing of civil lawsuits.  

  • On July 24, 2024, the Ohio Supreme Court decided McCullough v. Bennett, Slip Opinion No. 2024-Ohio-2783, rejecting the “one-use” limitation of the saving statute to permit the refiling of a dismissed lawsuit.  
  • On July 24, 2024, Governor DeWine signed H.B. 179 of the 135th Ohio General Assembly. When enacted, the bill will have two primary impacts: 1) the tolling period for an absconded defendant will not apply to the statute of repose, and 2) a plaintiff need not name an individual in order to assert respondeat superior liability against an employer except in limited circumstances.  

McCullough v. Bennett involved a personal injury suit where McCullough alleged that Bennett was at fault for running a red light. Suit was timely filed and after service was returned unclaimed, dismissed without prejudice by the trial court. The lawsuit was timely refiled a few months later, with successful service by publication. When defendant failed to answer, the court dismissed the second complaint without prejudice for failure to prosecute after plaintiff failed to file a motion for default judgment, as instructed by the court. 

After the two-year statute of limitations expired, suit was refiled under the saving statute. Service was ultimately successful and defendant moved to dismiss the third complaint as time-barred because the statute of limitations expired and the saving statute did not apply as the first two complaints were filed before the statute of limitations expired. The trial court agreed and dismissed.  

The Second District reversed, noting that a prior version of R.C. 2305.19(A), Ohio’s saving statute, applied only when a case had been dismissed after the expiration of the statute of limitations, but that the current version of the saving statute has no such requirement.  The decision included a graph of the relevant dates.  

The Supreme Court accepted the appeal on three propositions of law:  

  • the “one-use restriction” bars invoking the saving statute a second time,
  • the saving statute does not apply to the third complaint as the second complaint was dismissed prior to expiration of the statute of limitations, and
  • the claim is barred because it was not commenced within one year after service.

First, the decision analyzed the plain language of the saving statute. It noted that the General Assembly amended the saving statute in 2004 to address the “malpractice trap” that existed under the former version of the saving statute that did not give a plaintiff who voluntarily dismissed prior to the expiration of the statute of limitations an additional year to refile. The court found that under the plain terms of the saving statute, McCullough’s claim is not time-barred.  

The court next discussed the judicially created “one-use” restriction in Thomas v. Freeman, 79 Ohio St.3d 221, 227 (1997), which noted in dicta that “the savings statute can be used only once to refile a case.” The court declined to adopt the Thomas dicta as it involved a pre-2004 version of the saving statute. The court found the current version unambiguous. Justice Brunner wrote an opinion concurring in judgment only, objecting to the majority opinion characterizing the “one-use” rule as “judicially created.” 

The Court stated that the second argument is also refuted by the plain language of the saving statute that the legislature amended. Therefore, a prior action’s dismissal after expiration of a statute of limitations is not a condition for application of the saving statute.   

The third proposition of law that the saving statute does not apply because service was not perfected on the second complaint within the one-year commencement period in Civ. R. 3(A), was also rejected. The court distinguished Moore v. Mt. Carmel Health Sys., 2020-Ohio-4113 as it expressly dealt with a situation where the saving statute was inapplicable. In the case at bar, the saving statute applies by its plain language. 

The Court concluded that under the plain language of the saving statute the third complaint was timely filed and affirmed the judgment of the Second District.  

 

H.B. 179 of the 135th Ohio General Assembly amends R.C. 2305.15 to provide that the tolling of the limitations period during the defendant’s absence or concealment does not apply to the statute of repose. Under H.B. 179, the limitations periods for statutes of repose are not tolled when the person against whom a cause of action accrues is out of state, absconds or conceals self. This includes, but is not limited to, statutes of repose on claims of actions for: 

  • Product liability claims against the product manufacturer or supplier 
  • Medical, dental, optometric, or chiropractic claims 
  • Assault or battery actions against a mental health professional 
  • Legal malpractice claims 
  • Actions arising out of a defective and unsafe condition of an improvement to real 
  • Property 

H.B. 179 states that in amending R.C. 2305.15, the General Assembly declares that its purpose is to expressly overrule the decision of the Ohio Supreme Court in Elliot v. Durrani,  2022-Ohio-4190. 

H.B. 179 also enacts R.C. 2307.241 regarding vicarious liability to provide that a plaintiff does not need to name a primarily liable agent, servant, employee, or person as a necessary party to the tort action alleging respondeat superior or vicarious liability, unless the tort action is filed is: 

  • a medical claim against a physician, podiatrist, or physical therapist; 
  • a dental claim against a dentist; 
  • an optometric claim against an optometrist; 
  • an action upon a chiropractic claim against a chiropractor; or 
  • an action upon a legal malpractice claim against an attorney. 

This change addresses concerns raised following the Ohio Supreme Court’s decision in Clawson v. Heights Chiropractic Physicians LLC, 2022-Ohio-4154. You can check for the effective date of this legislation on the Ohio Secretary of State’s website.  

Consider these changes when reviewing potential or current client representation. As always, if you have questions, please do not hesitate to contact us at OBLIC. 

Gretchen K. Mote, Esq.
Director of Loss Prevention
Ohio Bar Liability Insurance Co.
Direct:  614.572.0620
[email protected]
Merisa K. Bowers, Esq.
Loss Prevention Counsel
Ohio Bar Liability Insurance Co.
Direct:  614.859.2978
[email protected]

 

This information is made available solely for loss prevention purposes, which may include claim prevention techniques designed to minimize the likelihood of incurring a claim for legal malpractice. This information does not establish, report, or create the standard of care for attorneys. The material is not a complete analysis of the topic and should not be construed as providing legal advice. Please conduct your own appropriate legal research in this area. If you have questions about this email’s content and are an OBLIC policyholder, please contact us using the information above.