Chip brought up the five year anniversary of Hurricane Katrina in his post last week titled, “The Hurricane Katrina Five Year Anniversary is Noted as New Hurricanes Lurk in the Atlantic Ocean.” The anniversary of Katrina will have special meaning to all who were affected by it, but this five year anniversary also has a practical importance to anyone in Florida that is still attempting to put the pieces back together after Katrina, thanks to Florida’s five year statute of limitations on contract lawsuits. Fla. Stat. § 95.11(2)(b) requires that “[a] legal or equitable action on a contract, obligation, or liability founded on a written instrument…” must be commenced within five years.
A statute of limitations works like a legal deadline by which a lawsuit must be filed. Each state has its own statute, and deadlines vary by the cause of action (e.g. contracts, negligence, and medical malpractice). In actual practice, the statute of limitations must be raised as a defense to have any effect, but if it is raised, it can act as an absolute bar to any recovery the plaintiff may be seeking.
There are some exceptions to the statute of limitations that lawyers can work with to try to get around these hard and fast deadlines, but it is always better to be safe than sorry with these deadlines. One exception is the relation back doctrine. Under Rule 15(c) of the Federal Rules of Civil Procedure, an amendment made to a pleading in a lawsuit will “relate back” to the original date of filing if:
(A) the law that provides the applicable statute of limitations allows relation back;
(B) the amendment asserts a claim or defense that arose out of the conduct, transaction, or occurrence set out — or attempted to be set out — in the original pleading; or
(C) the amendment changes the party or the naming of the party against whom a claim is asserted, if Rule 15(c)(1)(B) is satisfied and if, within the period provided by Rule 4(m) for serving the summons and complaint, the party to be brought in by amendment:
(i) received such notice of the action that it will not be prejudiced in defending on the merits; and
(ii) knew or should have known that the action would have been brought against it, but for a mistake concerning the proper party’s identity.
In Tubre v. Western Diversified Cas. Ins. Co., No. 09-2482, 2009 WL 3447255 (E.D. La. Oct. 19, 2009), a Louisiana resident sued his insurance company for bad faith and damages resulting from Hurricane Katrina. The lawsuit was filed within the appropriate statute of limitations, but, unfortunately, the plaintiff named the wrong insurance company as the defendant. The plaintiff rectified the error, but not until after the statute of limitations had run in Louisiana. When the newly named defendant insurance company raised the statute of limitations as a defense, the plaintiff’s attorney asserted the relation back doctrine, claiming that the new lawsuit “arose out of the conduct, transaction, or occurrence” of the original lawsuit against the wrongly named insurance company. The plaintiff’s attorney satisfied part (c)(1)(B) of Rule 15, but could not satisfy parts (c)(1)(C)(i) and (ii),which require a newly named defendant be aware that it could or should have been named in the lawsuit before the statute of limitations ran out. The court held that the amended complaint did not relate back and dismissed the lawsuit against the insurance company.
This is just one example of what was probably a valid claim against an insurance company that was dismissed because it was filed after the statute of limitations passed, even though the delay was based on a simple error. The five-year anniversary of Hurricane Katrina passed last week for those in Florida. Other anniversaries are also coming up soon, such as September 13, for Hurricane Ike claims in Texas, and October 24, for Hurricane Wilma claims in Florida. If you have a potential claim based on one of these storms or know someone who does, please urge them to get competent legal help before it is too late.