Summary
finding Plaintiff's action was barred when the praecipe filed on the day the statute of limitations period ended directed the Prothonotary not to issue summons until the Plaintiff so requested
Summary of this case from WILSON v. HELMOpinion
C.A. No. 00C-03-303.
Submitted: December 11, 2000.
Decided: February 2, 2001.
On Defendant's Motion to Dismiss, Plaintiff's Complaint — Granted.
Christopher D. Tease, Esquire, 1232 North King Street, Suite 1, Wilmington, Delaware 19801, Attorney for Plaintiff.
Mason E. Turner, Jr., Esquire, 1310 King Street, P.O. Box 1328, Wilmington, Delaware 19899, Attorney for Defendant.
OPINION AND ORDER
This motion arises from a medical malpractice action brought by the Plaintiff, Joan Tease, against the Defendant, Marsha London. The Defendant filed a motion to dismiss the Plaintiff's complaint on October 30, 2000, and the Plaintiff filed her response on November 21. Argument having been held on November 27 followed by the submission of additional memoranda in support of the parties' respective positions, that which follows is the Court's resolution of the issues so presented.
FACTS
On March 30, 1998, the Defendant, an anesthesiologist at St. Francis Hospital, was assisting in a surgical procedure which was being performed on the Plaintiff. During the operation, the Plaintiff suffered injuries to her eyes. She asserts in her complaint that these injuries are the result of medical malpractice on the part of the Defendant. Specifically, she claims that the Defendant failed to act with reasonable care and failed to provide adequate follow-up care to the Plaintiff following surgery.
The Plaintiff filed a complaint and a praecipe with the Court on March 30, 2000. However, the praecipe directed the Prothonotary to not issue the summons and complaint until the Plaintiff so requested. The reason given for this request was that the Defendant no longer worked at St. Francis Hospital and the Plaintiff was unable to determine where process was to be served upon her. Once the Defendant's whereabouts had been ascertained by the Plaintiff, she subsequently filed another praecipe on August 14, 2000 directing service of process.
The Defendant now moves for the case to be dismissed pursuant to Superior Court Civil Rule 12(b)(6). More specifically, the Defendant claims the statute of limitations has run on this action and it is therefore barred by 18 Del. C. § 6856. The Plaintiff responds that the action must not be barred, because Plaintiff's Counsel exercised reasonable diligence in its efforts to locate the Defendant and that the failure of service is excusable neglect.
DISCUSSION
18 Del. C. § 6856 provides in relevant part:
No action for the recovery of damages upon a claim against a health care provider for personal injury, . . . arising out of medical negligence shall be brought after the expiration of 2 years from the date upon which such injury occurred . . .
The statute of limitations in this case began to run on March 30, 1998, because this is the date upon which the Plaintiff suffered her injuries. Dunn v. St. Francis Hosp., Del. Supr., 401 A.2d (1979). Therefore, the Plaintiff must have commenced her action by March 30, 2000, in order to timely file the action. On this date, the Plaintiff filed her original complaint and the praecipe directing the Prothonotary to refrain from serving process upon the Defendant. However, this filing did not commence the action. The commencement of an action does not begin until the Plaintiff files "with the Prothonotary a complaint . . . and a praecipe directing the Prothonotary to issue the writ." Superior Court Civil Rule 3 (emphasis added). According to this rule, the action did not commence until August 14, 2000, the date that the amended complaint and the praecipe directing the Prothonotary to serve process was filed. Therefore, according to the statute, since the August 14, 2000 date is not within the time period mandated by 18 Del. C. § 6856, the Plaintiff's action is barred.
The Plaintiff argues that the action is not barred because if a party uses reasonable diligence or where there is excusable negligence, the statute of limitations period can be expanded. In this case, the Plaintiff asserts that she used reasonable diligence in attempting to ascertain the whereabouts of the Defendant because she used the most common means of locating her. Additionally she claims excusable negligence because both the Defendant's former employer and the Defendant's insurance agent refused to supply her address to the Plaintiff.
To support of these arguments, the Plaintiff cites Jackson v. White, Del. Super, C.A. No. 89C-MY-175, Toliver, J. (October 25, 1990) (ORDER) and Setting v. Bricker, Del. Super., C.A. No. 955, 1972, Taylor, J. (1974) (Letter Op.). In both of these cases, the Court permitted an enlargement of the statute of limitations period in order for the Plaintiff to be able to serve the Defendant. These cases are distinguishable from present case. The Plaintiffs in these cases issued a praecipe within the statute of limitations period affirmatively directing the Defendant to be served, thereby commencing the action. "It is required that the praecipe contain a positive order for the issuance of the necessary process to put the judicial machinery in motion." Russell v. Olmedo, Del. Supr., 275 A.2d 249, 250 (1971). In the present case the praecipe filed by the Plaintiff on March 30, 2000 expressly requested that the Defendant not be served. Therefore, according to Russell, the action did not commenced on that date. It was not until the Plaintiff filed the subsequent praecipe on August 14, 2000 that the judicial machinery was set in motion. Unfortunately for the Plaintiff, this filing did not take place until after the limitations period had expired on March 31, 2000.
The issue with which the Court is now faced is not novel to the Delaware courts. The Supreme Court in Russell, as well as the Superior Court have previously faced strikingly analogous fact patterns. InGiordano v. Nickler, the Plaintiff filed, on the last day of the statute of limitations period, a complaint and praecipe directing that the Defendant not be served until further notice. Nine months later the Plaintiff directed the Sheriff to serve the Defendants. The Defendant then moved for summary judgment alleging that the action was barred because the statutory period had expired. In granting the Defendant's motion, the Superior Court citing Russell, held that the filing of a complaint and an praecipe directing that the Defendant not be served within the statutory period does not toll the statute of limitations.Giordano v. Nickler, Del. Super., No. 84C-MR-100, Martin, J., (May 5, (1986) (Op.).
In the case sub judice, because the praecipe directing service was not filed until after the statute of limitations period had expired, the Plaintiff's action is likewise time-barred.
CONCLUSION
For the reasons set forth above, the Defendant's motion for summary judgment must, and is therefore granted.
IT IS SO ORDERED.