Tolling Statute of Limitations
I’m David Holub, an attorney focusing on personal injury law in northwest Indiana.
Welcome to Personal Injury Primer, where we break down the law into simple terms, provide legal tips, and discuss topics related to personal injury law.
Today’s question comes from a caller who said “I hear that all of the courts are shutting down for weeks, if not for months, due to an emergency, what does this mean for me, I have a case that needs to be filed because I think the statute of limitations is running next week?”
This is a common question and the answer is not simple.
When a hurricane or other weather or emergency event disrupts normal court operations, it can result in courts closing.
Courts can close on their own by an order of court.
Or a governor might issue an edict or emergency declaration that closed government offices including the courts.
Does a governor have the ability to issue an emergency declaration that says that a statute of limitations will not be enforced? Maybe yes, maybe no.
A statute of limitations is something that is a creature of a legislative body. A defendant who is sued after the statute of limitations expires, might argue to a court that the governor has no authority whatsoever to extend a deadline for filing a lawsuit, only a legislature can do that.
Could a governor order a legislature to pass a law, or extend a deadline? No.
The safest bet is to look to ordinary court rules.
For example, in Indiana, ordinary court rules called the trial rules say that if your statute deadline ends on a weekend or a holiday when the court is closed, that the statute deadline is suspended or tolled, until the next day that the court is open.
So, if the time to sue expires on Memorial Day, and the Courts are closed, then you have until the next day to file.
But, what happens if some courts are open and other courts are closed, and you could file suit in an open court? Confusing right?
The rule focuses on a court closure due to a recognized non business day or a holiday, and not the whims of any given judge.
If there is an extended closure of government offices, it’s quite possible that if that statutory deadline passes and the case isn’t filed in a timely fashion a court could entertain a motion to dismiss a lawsuit based on the fact that the case wasn’t filed in a timely manner arguing that the closure wasn’t due to a normal weekend or an official holiday.
Most attorneys will say that the best response, if a client comes in with a statute expiring during an emergency closure, would be to file the case promptly via a court’s electronic filing system if the e-filing system is open.
Since cases can be filed electronically nowadays, and since the courts themselves can be closed while the electronic system that allows you to file pleadings and other papers with the court, remains open, this might work.
So to answer the caller’s question, the best practice would be to get in to see an attorney as quickly as possible before the statutory deadline expires and work with that attorney to see if your case can be filed electronically before the deadline expires, and fall back on immediately filing once the courts are again open if there is no electronic means of filing. Such an approach would eliminate most potential problems.
If you’re in a situation where the courts are closed for months, whether for emergencies such as hurricanes or the like, or for quarantines and pandemics, you need to contact an attorney and find out what can be done to assist you to get your case on file in a timely manner.
I hope you found this information helpful. If you have questions about your legal rights if you get hurt due to the carelessness of another person, or as a result of substandard medical care, or due to a product defect, construction injury, or any other type of personal injury, please give us a call at (219) 736-9700. You can also learn more about us by visiting our website at DavidHolubLaw.com – while there make sure you request a copy of our book “Fighting for Truth”.