Prior to the Coronavirus outbreak, calculating the statute of limitations in a regular tort case was easy arithmetic. For most torts, under Georgia law the statute of limitations to file a lawsuit is two years from the incident. For limited exceptions, the statute of limitations can be tolled or paused—think cases involving a minor or an incapacitated plaintiff. Just like with everything else, the Coronavirus pandemic has now thrown a wrench into calculating the statute of limitations.
O.C.G.A. §38-3-62 gives the Supreme Court of Georgia the power to issue a judicial emergency allowing them, among other things, to suspend, toll, and extend deadlines, including the statute of limitations. On March 14, 2020, the Supreme Court of Georgia issued Order Declaring Statewide Judicial Emergency where the court suspended, tolled, extended, and otherwise granted relief from any deadlines or other time schedules or filing requirements imposed by otherwise applicable statutes, rules, regulations, or court orders, whether in civil or criminal cases or administrative matters, including statute of limitations.
The Supreme Court of Georgia continued to issue orders extending the judicial emergency monthly. On July 10, 2020 the Supreme Court of Georgia issued its Fourth Order Extending Declaration of Statewide Judicial Emergency where it reimposed the deadlines affected by the initial Judicial Emergency Order. The Fourth Order specifically stated that in cases filed on or after July 14, 2020, litigants shall comply with the normal deadlines applicable to the case. Regarding the statute of limitations, the Supreme Court stated “[t]he 122 days between March 14 and July 14, 2020, or any portion of that period in which a statute of limitation would have run, shall be excluded from the calculation of that statute of limitation.”
This portion of the Fourth Judicial Emergency Order has caused confusion on how to calculate the statute of limitations. Parts of the Bar have interpreted the Order to automatically grant a 122-day extension to the statute of limitations. So, for example, if an accident occurred on March 14, 2020, the proponents of this interpretation would argue the statute didn’t start running until July 14, 2020, and the two-year statute of limitations would expire on July 14, 2022. Other parts of the Bar interpret the Order to only grant an extension for claims whose statutes of limitations would expire between March 14 and July 14, 2020.
The Courts also appear conflicted on how to interpret the Judicial Emergency Order. On January 11, 2021 the Superior Court of Camden County entered an order stating that the 122-day extension was automatically granted for every claim.[1] It appears that this order focuses on the word “tolled,” and interpreted the Judicial Emergency Order as pausing all statutes of limitations during the judicial emergency period. (Click HERE for the Camden County Order).
The District Court for the Middle District of Georgia ruled on April 29, 2021 that the Judicial Emergency Order only extends statutes of limitation in cases where the statute of limitations would expire during the judicial emergency period.[2] The Middle District focused on the word “that” referring to the specific statute of limitations at issue. The Middle District specifically stated that the interpretation that “the Georgia Supreme Court granted every potential plaintiff a 122-day bonus extension to every applicable statute of limitations is simply unreasonable.” (Click HERE For the Middle District Order).
Neither of the cases cited above are binding on the Georgia Appellate Court. Until a Georgia Appellate Court issues a ruling explaining the correct interpretation of the judicial emergency order, we are in limbo as to when the statute of limitations actually expires. So, what can you do to protect your file? We find the best course of practice is to act like the deadlines were never affected at all. Plaintiffs that files actions within their normal two-year deadline cut off any statute of limitations arguments of the defendant. If the plaintiff opts to use the possible extension, the defendant should raise the statute of limitations defense in its Answer.
[1] Cynthia Miranda v. W.F. Readdick, LLC, et. al., Case No. 2020-CV-866, (Superior Ct. Camden County, GA Jan. 11, 2021).
[2] Hans Owens v. Perdue Farms, Inc., et. al., Case No. 5:20-cv-00307-TES (M.D. Ga. April 29, 2021).
