Savings Statute and Wrongful Death

by Ohio Supreme Court Justice Paul Pfeifer

On November 26, 2003, Joshua M. Eppley, a student in the Tri-Valley Local School District, died in an auto accident while he was a passenger in a car driven by Corey W. Jenkins.

Nearly two years after the accident – on August 3, 2005 – Randy J. Eppley, the administrator of Joshua’s estate, filed a complaint for wrongful death against the Tri-Valley school district and board, but a little over a month later – on September 15, 2005 – he dismissed the case without prejudice. A “dismissal without prejudice” means that the person can still sue again on the same cause of action. Thus, Eppley refiled his complaint the following year, on September 7.

The refiled complaint alleged that unnamed employees of the school district engaged in willful, wanton, and reckless conduct by allowing Corey to remove Joshua from school premises without the permission of Joshua’s parents and that his death was the result of that conduct.

The school board and district filed a motion for judgment on the pleadings, arguing that the statute of limitations – which was two years – had run on the complaint before refiling and that they were, therefore, immune from liability.

Eppley, however, was depending on something called the “general saving statute.” What is the general saving statute? It is a law that states, in part, that when a plaintiff “fails otherwise than upon the merits, the plaintiff…may commence a new action within one year after the date” of that failure, or “within the period of the original applicable statute of limitations, whichever occurs later.”

By virtue of the general saving statute, Eppley believed that he had another year beyond the original statute of limitations to file his suit. The trial court did not agree, and dismissed the complaint without giving a reason for the dismissal.
The court of appeals reversed that judgment. After that, the case came before us – the Supreme Court of Ohio – for a final review.

In this case there were two different laws that were potentially applicable. The first was the general saving statute, which was described earlier. The second law, which was specific to wrongful death actions, said that if a plaintiff’s action is dismissed – for some reason other than the merits – after the statute of limitations has expired, then the plaintiff has one year from the time of that dismissal to file a new suit.

Before the year 2000, both the general saving statute and the one specific to wrongful death actions granted a plaintiff an additional year in which to refile only if dismissal occurred after the original statute of limitations had expired. Sometimes referred to as the “malpractice trap,” the general saving statute as it then existed meant that a plaintiff whose case had been dismissed without prejudice before the original statute of limitations had run was required to refile the action within the original statutory time, regardless of how much time was left.

But the Ohio legislature amended the general saving statute in 2004, closing the malpractice trap and permitting a plaintiff to refile within one year after dismissal or within the time remaining under the statute of limitations, whichever is longer.
The legislature, however, did not make a similar amendment to the wrongful-death saving statute. By a six-to-one majority, our court concluded that since the wrongful-death saving statute is the more specific statute, it applies to this case, and therefore, Eppley’s complaint was untimely filed.

The fatal accident occurred November 26, 2003, and the case was dismissed without prejudice on September 15, 2005. According to the majority, under the saving statute specific to wrongful-death actions, Eppley’s refiling deadline was not extended to September 15, 2006. Because the action was dismissed before the two-year statute of limitations ran, Eppley still had only two years from the date of the accident – until November 26, 2005 – to bring suit.

I cast the dissenting vote because I preferred to see the distinction between the saving clauses contained in the two statutes as the result of legislative inadvertence. The General Assembly fixed the “malpractice trap” associated with the general saving statute, and since that statute applies “in any action that is commenced or attempted to be commenced,” the legislature could have assumed that it would apply to wrongful-death actions as well. After all, everyone makes mistakes – even the Ohio General Assembly.

The amendment to the general saving statute was meant to fix inequitable treatment of certain plaintiffs. “The amendment permits plaintiffs one year to refile, or the time left (if any) on an unexpired statute of limitations, whichever is later.”
If the General Assembly’s inaction in failing to make the same change to the wrongful death saving statute was purposeful, that is more disturbing than a mistake.

There is no rational basis to distinguish between wrongful-death plaintiffs and all other plaintiffs in fixing the malpractice trap. Is there a rational basis to fix a disparity that existed between plaintiffs that dismissed civil claims within a few days of each other but to not have that fix apply to wrongful-death plaintiffs?

If the General Assembly’s aim is to speed along wrongful-death claims, as the majority suggested, it has not adopted a rational method to achieve that end. Wrongful-death plaintiffs still have the ability to extend the lives of their claims, as long as they wait to dismiss their claims until the statute of limitations has passed.

To encourage prompt dismissals and refilings, the General Assembly should have made the same amendment to both saving statutes. If the General Assembly’s aim was to perpetuate a malpractice trap only for wrongful-death plaintiffs in order to limit overall damages awarded in wrongful-death cases, that would constitute an illegitimate attempt to limit the damages recovered in wrongful-death claims and would violate the Ohio Constitution.

I believe the majority attempted to attribute rationality to the General Assembly’s unintentional act. The General Assembly thus emerges worse than if it had been merely mistaken. Nevertheless, the majority saw it differently, and we reversed the judgment of the court of appeals.

EDITOR’S NOTE: The case referred to is: Eppley v. Tri-Valley Local School Dist. Bd. Of Edn., 122 Ohio St.3d 56, 2009-Ohio-1970. Case No. 2008-0366. Decided May 5, 2009. Majority opinion written by Justice Judith Ann Lanzinger.