Every plaintiff in a personal injury lawsuit must comply with local state laws applicable to their case. One of the initial and most important legal rules to follow is the time period within which the case must be filed. This is called the statute of limitations. In East Texas and throughout the state, personal injury claims must be filed within two years from the date of the occurrence. Furthermore, not only must the case be filed within two years, but also if the plaintiff serves the defendant after the limitations period has elapsed, service is valid only if the plaintiff exercised due diligence in effectuating service. These are complicated issues that must be resolved in accordance with the law, or else the plaintiff could lose the right to pursue the action. Anyone who has suffered injuries due to another’s negligence is encouraged to contact an experienced East Texas injury attorney, someone who handles car accident claims on a routine basis.
In a recent Texas case, the plaintiff lost the right to pursue her negligence case for failing to properly serve the defendant with the complaint. Here, the parties were in a car accident in December 2010. Two years later, just prior to the expiration of the statute of limitations, the plaintiff brought an action against the defendant for negligence. In September 2013, the plaintiff moved for “substituted service” and finally served the defendant in November 2013. The defendant asserted various defenses, including a statute of limitations defense, arguing that the plaintiff was not diligent in serving him with process.
The defendant then moved for summary judgment, seeking dismissal of the case on statute of limitations grounds. The defendant presented evidence of a seven-and-a-half-month gap between the plaintiff’s first attempts to serve him and then a nine-month gap between the filing of the initial petition and the plaintiff’s request for substituted service.
The plaintiff responded by arguing that the defendant “evaded” process by, among other things, hanging up the phone on the process server. The plaintiff, however, failed to offer an explanation as to why there was a gap between service attempts. The trial court ruled in favor of the defendant and granted the summary judgment motion. The plaintiff appealed, arguing that a question of fact existed as to whether she exercised diligence in attempting to serve the defendant. Under Texas law, in order to prove diligence, a plaintiff must provide evidence of her efforts to serve the defendant and must also explain the lapse in such service.
The question is whether the plaintiff acted as an ordinarily prudent person would have, under a similar set of circumstances. While a plaintiff’s diligence is typically considered a question of fact, if one or more lapses between a plaintiff’s attempts to effectuate service are unexplained or unreasonable, the record would demonstrate lack of diligence as a matter of law. The plaintiff attempted to argue that the defendant was “estopped” from relying on a limitations defense, due to his efforts to evade service.
Despite the plaintiff’s arguments, the court of appeals upheld the lower court’s decision, concluding that the plaintiff failed to offer an explanation of the lengthy delay of service and also failed to provide evidence of any conduct on the defendant’s part that would have induced the delay of service.
The plaintiff is now without recourse to pursue her personal injury claim arising from the car accident. This case nicely illustrates the need to comply with local laws applicable to negligence cases. Earl Drott is an injury attorney with more than 25 years of experience representing parties in auto accident cases in the East Texas area. For a free consultation, call (903) 531-9300.
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