The purpose of the Ohio savings statute, R.C. 2305.19, is to protect a plaintiff from the expiration of statutes of limitation when the plaintiff timely has attempted to commence an action. Unfortunately, despite its remedial purpose, the savings statute was so unsafe in practice that it commonly was referred to as the “malpractice trap.” The savings statute was amended in 2004 to eliminate this trap. However, despite the amendment, substantial ambiguities continued to exist in the interpretation of the savings statute.
See https://www.ohiobar.org/member-tools-benefits/practice-resources/practice-library-search/practice-library/2019-ohio-lawyer/how-safe-are-you/. A recent decision highlights yet another uncertainty in the application of the statute.
McCullough v. Bennett, 2d Dist. Montgomery No. 2019-CV-4163, 2022-Ohio-1880 involved the dismissal of a complaint on statute of limitations grounds. The case turned on two issues under the savings statute. The first was the classic “malpractice trap.”
Id. at ¶ 14. The savings statute originally gave a plaintiff one year to refile a complaint that has been dismissed “other than on the merits.” However, courts had held that if the dismissal had occurred before the statute of limitations expired, a plaintiff only had the shorter of the expiration of the original statute of limitations period, or one year, to refile the complaint.
The trial court in
McCullough had dismissed the complaint based on the malpractice trap. The appellate court correctly held that the statute had been amended in 2004 to eliminate the malpractice trap by adding the language “within one year after * * * the plaintiff’s failure otherwise than upon the merits or within the original applicable statute of limitations, whichever occurs later.”
Id. at ¶ 15.
The appellate court sua sponte raised a second issue. Prior to the 2004 amendment, it had been held that the savings statute could only be used once.
Thomas v. Freeman, 79 Ohio St.3d 221, 680 N.E.2d 997 (1997). The purpose of the rule was to prevent continuous re-filings after the original statute of limitations expired.
Id. The plaintiff in
McCullough had refiled his complaint twice after the original dismissal.
The appellate court in
McCullough held that the savings statute nevertheless applied for two reasons. First, the court held that because the initial refiling took place before the applicable statute of limitations had expired, the plaintiff had not “used” the savings statute. 2022-Ohio-1880 at ¶ 32. Second, the court held that the “one-use rule” did not apply under the amended statute because limiting a plaintiff to one refiling prior to the expiration of the statute of limitations did not make sense because there no longer was a danger of an indefinite extension of the statute of limitations.
Id. at ¶ 35-36. One year after the original limitations period expired is the most a plaintiff can get under the amended statute.
In reaching this conclusion, the appellate court acknowledged that two other districts had reached the opposite conclusion concerning the continued application of the one-use rule under the amended savings statute.
Rector v. Dorsey, 8th Dist. Cuyahoga No. 109835, 2021-Ohio-2675;
Owens College Nursing Students, 6th Dist. Wood No. WD-14-012, 2014-Ohio-5210. Nevertheless, the
McCullough appellate found that the policy behind the one-use rule no longer was applicable under the amended statute.
The
McCullough opinion clearly was drafted to frame the one-use rule for review by the Ohio Supreme Court. Until the Ohio Supreme Court resolves this split of authority (and other ambiguities) the savings statute will remain unsafe.