In Shaw v. Lynch, a police sergeant alleged that he’d responded to a report that the defendant was recklessly driving an ATV through the neighborhood. He came to the scene, and then the defendant gunned the engine of the ATV and purposefully drove the ATV over the police sergeant. The police sergeant claimed this caused him severe leg injuries and other injuries, and he sued the ATV driver.
The ATV driver denied the allegations in the complaint and moved for summary judgment. He argued that the plaintiff hadn’t actually served him with the complaint until after the two-year statute of limitations that applied to personal injury lawsuits had expired. He argued that there was no proof the plaintiff showed due diligence in serving him, and he had instead delayed two months. In addition to attaching proofs of service and citation, the defendant also attached a judgment that was entered against him in the related criminal action.
The plaintiff argued that the district clerk had caused the delay and that he’d been duly diligent. His attorney submitted an affidavit that he’d expected service on the defendant within a week or two, but a month passed before a return of service or answer was filed, and he’d had to straighten things out with the process server. The process server had also submitted an affidavit noting that it accepted assignments throughout the state and in this case had been unsuccessful in subcontracting the particular assignment.
The defendant argued this was not a good enough explanation because the attorney should have followed up. The trial court granted summary judgment.
The appellate court reviewed the summary judgment motion. The plaintiff argued that he’d provided evidence that raised a factual issue about his diligence in serving the complaint. The appellate court explained that his service was only valid if it occurred outside the limitations period if the plaintiff used diligence. In that case, the service would relate back to the initial filing. The issue was whether the plaintiff acted as someone with prudence would act under the same circumstances and continued to behave diligently until service. Under Texas Civ. Prac. & Rem. Code Ann. sec. 16.003, plaintiffs have to bring their personal injury lawsuit within two years of the date that the cause of action accrues.
In this case, the accident happened on December 30, 2010, and the limitations period expired on December 30, 2012. Although the complaint was filed on December 26, 2012, service didn’t happen until 52 days after the expiration of the limitations period. The court explained that a party can rely on a clerk to perform within a reasonable amount of time, but the party is supposed to use diligence to find out whether a citation has been issued and to make sure service is properly accomplished.
Here, the plaintiff’s attorney didn’t have a reason to suspect service of process was delayed initially, and he actively investigated. Therefore, the court found the plaintiff had raised a real factual issue as to diligence, shifting the burden back to the defendant. The court reasoned that a four-week delay is not so unreasonable that it shows lack of diligence as a matter of law. Accordingly, it reversed the summary judgment and sent it back to the lower court.
If you suffer losses after an ATV or other auto accident caused by someone else, the experienced San Antonio attorneys at Carabin & Shaw may be able to represent you and develop a sound strategy for handling your case. Call our office for more information at 1-800-862-1260.