TOLLING THE STATUTE OF LIMITATIONS IN TORT CASES FOR VICTIMS OF CRIME
As Georgia personal injury lawyers know, the typical statute of limitations for a bodily injury case in Georgia is two years from the date of the occurence at issue. However, in cases involving victims of criminal acts who have potential civil causes of actions against those who brought about injury to them, there are some nuances of Georgia law that all attorneys in this field should know.
The purpose of this entry is to acquaint the Plaintiff’s bar with a very important but little known statute. The statute at issue, O.C.G.A. § 9-3-99, was passed as part of the “Crime Victims Restitution Act of 2005.” It became effective July 1, 2005 and reads as follows:
The running of the period of limitations with respect to any cause of action in tort that may be brought by the victim of an alleged crime which arises out of the facts and circumstances relating to the commission of such alleged crime committed in this state shall be tolled from the date of the commission of the alleged crime or the act giving rise to such action in tort until the prosecution of such crime or act has become final or otherwise terminated, provided that such time does not exceed six (6) years.
Given that virtually every automobile accident involves misdemeanor criminal charges against a negligent driver (who presumably violated the Georgia Uniform Rules of the Road and was charged via a citation), it is submitted that in virtually every automobile accident tort case, this statute could potentially extend the statute of limitations from 2 years to 6 years. The same is true for any tort case (particularly intentional torts) resulting in criminal charges against a defendant. While the new statute has yet to be interpreted by any Georgia court, there are many interesting legal issues that may emerge in the future with respect to it.
Our firm first became aware of this statute in the context of two wrongful death actions we were prosecuting on behalf of separate families in Canada. These two deaths had occurred in a very bad tractor-trailer accident. While preparing those cases for trial, we contacted another person who had been injured in the same accident. This particular person lived in the state of Florida. When we first contacted the individual about providing a deposition for our cases, two years had already passed since the accident occurred. The witness, nonetheless, asked if our firm could assist him in bringing claims against the trucking company responsible for the collision. Because of the passage of time and also because we had a conflict of interest representing a witness we needed to depose for our other clients, we declined. However, when we later settled the two wrongful death cases and advised the witness his deposition was no longer needed, he again asked if we could be of service to him. Even though the otherwise applicable two-year statute of limitations had arguably run, because the tractor-trailer driver had been charged with vehicular homicide in connection with the deaths in our other two cases and because our conflict no longer existed, we agreed to file claims on the new client’s behalf and to assert in his case that the statute of limitations had been tolled since he was a “victim” of a crime which had been committed in this state.
As might be imagined, absent this statute, there would have been no settlement of this case because of what otherwise would have been a solid statute of limitations defense. In many ways we were disappointed that we could not litigate the very interesting legal issues involved because obviously a favorable ruling for our client could have had a far reaching impact for all tort victims of crimes in the State of Georgia. Nonetheless, we believe that the language of the statute is sufficiently clear such that all victims of crimes in this State can take advantage of its provisions.
Given the existence of this statute, it is now important that counsel review every case closely where there is otherwise a potential statute of limitations issue. All plaintiffs’ counsel have been confronted with cases where clients have waited until the very last moment to contact an attorney. In the past, such cases may have been routinely refused, particularly in those cases where clients failed to contact counsel within two years. However, in cases where there otherwise appears to be legitimate injuries and legitimate liability, counsel should now inquire whether the tortfeasor was charged with violations of the Uniform Rules of the Road or other criminal violations. If so, there is a very good argument to be made that O.C.G.A. § 9-3-99 may have tolled the statute of limitations for such cases. Again, this is because any violation of the Uniform Rules of the Road set forth in O.C.G.A. § 40-6-1, et. seq., is by definition, a misdemeanor. See O.C.G.A. § 40-6-1(a).
As is evident from our firm’s experience, one of the interesting legal questions which will have to be resolved in a future case is whether a tort victim, not himself named as a victim of an alleged crime in any specific criminal charge, is nonetheless a “victim” entitled under the law to take advantage of its provisions. The definition of victim found at O.C.G.A. § 17-4-2(9) is “any natural person . . . suffering damages caused by the offender’s unlawful act.” It is noteworthy that Georgia law does not define a victim as being a person specifically named as such in formal criminal charges. Rather, a victim is merely a natural person suffering damages caused by the unlawful act at issue. Given this expansive definition, we believe that we would have prevailed in the legal contest with the trucking company had the matter proceeded that far.
In our case involving the Florida client, the trucking company also asserted that we were attempting to utilize the statute in an unconstitutional ex post facto manner. As set forth above, O.C.G.A. § 9-3-99 became effective July 1, 2005. The wrongful death case which resulted in injuries to our Florida client occurred in October, 2004. Because the tolling statute became law 8 months after the cause of action arose, the trucking company contended that our attempted utilization of the new statute was unconstitutional because the statute would have to be retroactively applied in order to benefit the Florida resident. However, Georgia law seems clear that when a new statute of limitations comes into being on a cause of action which has not yet expired under previous statutes, the extension of such claim by the new tolling provision does not result in an impermissible ex post facto application of the new law. If our client’s cause of action had expired before the new statute came into being, we would have agreed that the ex post facto clause could have been properly considered. Georgia law seems clear, however, that a statutory extension of a statute of limitations can be given a legal effect without violating the ex post facto doctrine provided the cause of action to which it applies has not yet expired before the statute is extended. See Hunter v. Johnson, 259 Ga. 21, 376 S.E. 2d 371 (1989).
Because the provisions of the victims’ rights legislation are obviously remedial in purpose, under Georgia law, they must also be broadly construed to accomplish the Legislative purposes intended. See Smith v. Commercial Union Assurance Company, 246 Ga. 50, 51, 268 S. E. 2d 632; Maryland Casualty Company v. Rhoden, 170 Ga. App. 704, 705, 318 S. E. 2d 175 (1984). Procedurally, in cases involving this statute, it may be difficult for a defendant to obtain a successful ruling on a Motion to Dismiss. In any Motion to Dismiss, the plaintiff’s pleadings must be construed most strongly in plaintiff’s favor and against the contentions of the defendant. See Bakhtiarnejad v. Cox Enterprises, 247 Ga. App. 205, 208, 541 S. E. 2d 33 (2000). If counsel specifically pleads that his or her client is a victim of a criminal act and that under the new statutes’ provisions the limitations period has been tolled, then in that event, a Motion to Dismiss is likely to fail provided counsel also pleads that the prosecution of the alleged crime or act giving rise to such action in tort has not become final or otherwise terminated or became final less than two years prior to filing the lawsuit. Once such pleadings are made, the defendant will then have to file a Motion for Summary Judgment. An issue of fact, however, can be placed into the record with respect to whether the client is a “victim” as defined under Georgia law in most cases simply by introducing into evidence the traffic charges and/or other criminal charges filed against the defendant with proof that the criminal prosecution has not yet become final or had become final before two years elapsed prior to filing the lawsuit. This could be accomplished quite simply vis a vis Request for Admissions addressing these subjects and/or through the production of the certified criminal disposition records.