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Legislative intent

A problem with trying to determine legislative intent is that it presumes the legislature had one.   Only two justices on the Ohio Supreme Court have any prior legislative experience; one of them picked up on that problem last week in the court's decision in Eppley v. Tri-Valley School Dist.

One of the first things a litigation lawyer learns about is the Ohio savings statute, RC 2305.19, which gives you a year to refile a complaint if it's dismissed otherwise than on the merits.  If you're approaching a trial date and can't get your witnesses together or need a new expert, or if you haven't gotten service and you're bumping up against the one-year limit for doing that, you simply dismiss the case, and refile it within a year.  There was a catch, though, for the unwary:  you got a year to refile only if the statute of limitations had already run.  If the statute ran on April 26, 1998, and you dismissed the case on April 27, you had a year to refile.  If you dismissed it on April 25, you had a day. 

The legislature fixed that "malpractice trap" back in 2004, giving you a full year to refile regardless of whether the statute had run.  That's what Eppley's lawyers were counting on.  The Eppley's son had been killed in an auto accident on November 26, 2003.  The estate filed a wrongful death case on August 3, 2005, within the two-year statute of limitations for those claims.  It voluntarily dismissed the case a month later, on September 15, then refiled the complaint within a year, on September 7 of 2006.

No problem, right?  Problem:  a wrongful death action has its own savings statute,  RC 2125.04, and when the legislature amended 2325.19 in 2004, it left 2125.04 unchanged.  So instead of having a full year to refile its complaint when it dismissed it in September of 2005, the estate had only a couple of months.  The savings statute didn't apply, so they had to refile the complaint within the limitations period.  When November 26, 2005, came and went, so did the Eppley's cause of action.

The trial court dismissed the complaint, but the 5th District reversed, holding that applying a different savings statute to wrongful death claims violated equal protection.  Last week, the Supreme Court reversed that by a 6-1 vote, and upheld the dismissal of Eppley's complaint.

As the opinion correctly notes, since this doesn't involve a suspect classification or a fundamental right, the crux of the issue is whether the difference in the treatment of wrongful death cases as opposed to all other civil claims furthers some rational governmental interest.  The school board had offered a laundry list of arguments as to why one should be treated differently from the other.  To be blunt, most made no sense.  While it's true that "wrongful death claims are statutory, while claims for personal injury are common-law claims," it's difficult to discern why that should require a different savings statute. 

The court latched onto two of the proffered justifications.  One was that while damages can be limited in tort actions, they can't in wrongful death actions.  (The latter are specifically provided for in the state constitution.)  Thus, the difference in the treatment of the savings statute "protects defendants against claims that cannot be limited statutorily."  Frankly, I don't understand that argument, either, and I'd give an analysis of the court's more detailed explanation for it if the opinion had provided one.  It didn't; that's all you get.

The only argument with any real validity was that this would speed up the handling of estates.  Wrongful death actions are brought by the estate, and distributed to the beneficiaries through the estate; "the more restrictive wrongful death saving statute [thus] prevents delaying the timely disbursement of the estate." 

Even that's a stretch, though; as Justice Pfeifer points out in his dissent, the effect of the decision could well be to prolong wrongful death litigation.  Had Eppley's lawyers been aware of the trap, they certainly would have refiled their complaint before the statute of limitations ran, rather than waiting a year.  But it's equally if not more plausible that they would have simply waited an additional couple of months for the statute to run before dismissing the case, thereby giving themselves the benefit of the full year.

In fact, Pfeifer nails the real problem in his last paragraph:

The majority has attempted to attribute rationality to the General Assembly's unintentional act.  The General Assembly thus emerges worse than if it were merely mistaken.

Pfeifer spent a term in the state House and four in the State Senate, serving as chairman of the Senate Judiciary Committee for ten years.  The only other member of the court with any legislative experience is Justice Cupp, who served sixteen years in the State Senate.  Pfeifer knows what a lot of people reading this post have probably guessed:  the failure to correct the "malpractice trap" in the wrongful death savings statute was very probably not the result of rational calculation, but simple inadvertence.  Five will get you ten that within the next year, RC 2125.04 will be amended to work the same way that 2305.19 does.

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