SC Court of Appeals Discusses Effect of Military Service on Statute of Limitations
The South Carolina Court of Appeals recently considered the impact of a plaintiff’s military service on the statute of limitations governing his tort claims against a governmental entity. Specifically, in Doe v. City of Duncan, Op. No. 5411 (Ct. App. June 8, 2016), the plaintiff, using the pseudonym “John Doe”, sued the City of Duncan alleging that he had been sexually abused as a child while participating in activities with the fire department. The trial court dismissed the action as barred by the statute of limitations. The plaintiff argued that his lawsuit was timely, because federal law protected him from the expiration of the statute because of his active military service.
Before it could address that issue, though, the Court of Appeals first needed to decide which statute of limitations should apply in the first place. Normally, because Doe was suing a state government entity, the South Carolina Tort Claims Act (SCTCA) would exclusively define and limit Doe’s claims. The SCTCA contains its own two-year statute of limitations (three years if the claimant makes a claim for damages that is disallowed), which applies to all tort claims against the State and municipalities, irrespective of the kind of claim. Doe, however, argued that the Court of Appeals should ignore the SCTCA’s statute of limitations and apply a statute of limitations governing claims of sexual abuse of minors — which does not expire until, at the very earliest, the victim turns 27 years-old. No South Carolina court had determined whether the sex abuse statute court displaced the SCTCA’s limitations period. The Court of Appeals ended any confusion over the issue and held definitively that the SCTCA’s two-year statute of limitations governed.
Next, the Court needed to examine the facts of the case to decide whether the plaintiff’s claims were timely under the SCTCA. Though the specific dates of abuse were not given, Doe turned 18 in February of 2004. The court concluded that was when the two-year statute of limitations would begin to run. Accordingly, under the Act, the statute would normally expire in February, 2006. Plaintiff did not file his Complaint until January 28, 2008, almost two years later. Moreover, he did not serve the summons or complaint at that time. On February 21, 2012 (more than four years later), Doe amended his complaint and served it on the City, though he did not serve the summons on the City (or the original complaint and summons). Thus, without some relief from the statute of limitations, Plaintiff’s claims were obviously untimely.
Doe sought relief from the statute of limitations under the Servicemembers Civil Relief Act (the Act), 50 U.S.C. §§ 3901-4043. The Act, in recognition of the sacrifice made by those serving in the military, provides that the time of a service member’s active military service is excluded from the counting of the statutory period. Between 2003 (before the statute began to run) and August 10, 2011, Doe was on active duty for a total of approximately six years. The court calculated that, excluding the periods of Doe’s active duty, the two-year statute of limitation (starting on his eighteenth birthday in 2004) would have expired, at the latest on February 11, 2012. Therefore, if Doe’s action was commenced before that date, it would be timely.
Under the Rule 3(a) of the South Carolina Rules of Civil Procedure, an action is timely “commenced” if it either:
(a) the complaint and summons are filed and served before expiration of the limitations period; or
(b) the lawsuit is filed before expiration of the statute and the complaint and summons are served within 120 days after filing.
The Court of Appeals concluded that the Act “applies only to toll statutes of limitation for bringing a suit, not serving or amending a suit.” Therefore, even applying the Act, the plaintiff’s time to file the lawsuit was extended, but he was still required to timely serve the summons and complaint in accordance with Rule 3(a).
Although Plaintiff timely filed the lawsuit in 2008, he did not timely serve the summons and complaint under Rule 3(a). Additionally, when Plaintiff served the amended complaint in February, 2012, he failed to serve the summons with that complaint (and, apparently, never served a summons). As a result, the Court of Appeals concluded that his claim was untimely because he did not fulfill the service requirements under South Carolina law.
This lawsuit is a reminder that simply filing a complaint and paying the filing fee is not enough to protect a party from the statute of limitations. An attorney must also ensure compliance with the rules governing service of process or face the risk of being untimely. Even statutory tolling of the statute under the Act does not relieve a party and its counsel from the obligation to serve process.