Texas Injury Lawyer Blog
In a Texas automobile accident case, the plaintiff has only a certain amount of time in which to file a lawsuit against the negligent driver whom he or she believes caused the accident at issue. The plaintiff must also take timely steps to see that this paperwork is served upon the defendant and not merely filed in the clerk’s office at the courthouse.
If this is not done, it is highly likely that the plaintiff’s case will be dismissed on procedural grounds due to his or her failure to comply with the statute of limitations.
While there are a few exceptions to this general rule, such cases are few and far between. Usually, failure to abide by the limitations period is fatal to what might otherwise have been a valuable cause of action against a negligent party, leaving the plaintiff with no monetary recovery despite the defendant’s fault in causing the accident.
Facts of the Case
In a recent case (Farmers Texas Mutual Insurance Company v. McAbee, Fifth Court of Appeals of Texas, No. 05-18-00735-CV) the plaintiff was an insurance company who, acting as a subrogee of its insured, filed suit against the defendant driver, seeking compensation for damages arising from an automobile accident that occurred on January 11, 2016.
The plaintiff filed its suit on December 29, 2017, less than two weeks prior to the expiration of the two-year statute of limitations applicable under Texas law. About a month later, the trial court issued a notice of dismissal for want of prosecution and set the case for a hearing. About two months after its complaint was filed (and about six weeks after the expiration of the statute of limitations), the plaintiff first requested that a citation be issued to the defendant. After the defendant filed a motion for summary judgment based upon limitations of actions, the trial court entered a take-nothing judgment in favor of the defendant. The plaintiff appealed.
The Court’s Decision on Appeal
The court of appeals affirmed the trial court’s summary judgment in favor of the defendant based on the expiration of the statute of limitations. Although the plaintiff argued on appeal that it had provided evidence of an explanation for the delay between the filing of its complaint and the time that the defendant was served therewith, the reviewing court did not agree that this evidence established due diligence as a matter of law.
Given that the matter was heard by the trial court on summary judgment, the court of appeals reviewed the matter de novo, taking all evidence favorable to the plaintiff (as the non-movant) as true and indulging all reasonable inferences in the plaintiff’s favor. Nevertheless, the court found that, based on prior Texas case law (Ashley v. Hawkins, 293 S.W.3d 175, 179 (Tex. 2009), the mere fact that the plaintiff had filed its claim within the applicable limitations period did not, in and of itself, interrupt the running of the limitations period if the plaintiff failed to exercise due diligence in procuring the issuance and service of its complaint upon the defendant.
The plaintiff’s attorney submitted an affidavit explaining that he had no staff over the holidays and that “due to an oversight” he failed to include a request for a citation when he filed the complaint against the defendant. However, because the record clearly revealed that the plaintiff did not request a citation upon filing the complaint, nor did it file such a request until quite some time after receiving the trial court’s notice concerning possible dismissal for failure to prosecute, the court found that the plaintiff did not exercise due diligence under the circumstances. Hence, the defendant was entitled to judgment as a matter of law.
Talk to an Automobile Accident Attorney in East Texas
If you have been hurt in a wreck and need more information about filing suit against the responsible party, please call Earl Drott Law at 903-531-9300. Experienced car accident lawyer Earl Drott accepts many personal injury and wrongful death cases on a contingency fee contract, such that fees aren’t collected until a settlement or judgment is reached in your case, so there is no reason to delay taking legal action on your case.