The Ohio Supreme Court recently decided a murky issue regarding the Ohio saving statute, R.C. 2305.19 in Portee v. Cleveland Clinic Foundation, 155 Ohio St.3d 1, 2018-Ohio-3263. Click for full case. R.C. 2305.19(A) states:
“In any action that is commenced or attempted to be commenced, if in due time a judgment for the plaintiff is reversed or if the plaintiff fails otherwise than upon the merits, the plaintiff or, if the plaintiff dies and the cause of action survives, the plaintiff’s representative may commence a new action within one year after the date of the reversal of the judgment or the plaintiff’s failure otherwise than upon the merits or within the period of the original applicable statute of limitations, whichever occurs later.”
In Portee, the plaintiff filed a medical malpractice suit against the Cleveland Clinic Foundation and two physicians in federal court in Indiana, but that court dismissed the plaintiff’s case for lack of personal jurisdiction. The plaintiff then filed an identical medical malpractice action in Cuyahoga County Court of Common Pleas. The Cleveland Clinic then
“moved for summary judgment, asserting that the one-year statute of limitations in R.C. 2305.113 for medical malpractice actions barred the action and that R.C. 2305.19, the Ohio saving statute, did not apply to save it because the original action had been commenced in another state and pursuant to Howard v. Allen, 30 Ohio St.2d 130, 283 N.E.2d 167 (1972), could not be refiled in Ohio because the saving statute applies only to actions originally commenced in Ohio within the period of the statute of limitations.”
Portee, 2018-Ohio-3263, at ¶ 4.
The Ohio Supreme Court agreed. “If an action is commenced in another state in either state or federal court and fails otherwise than upon the merits, and the statute of limitations for commencement of such action has expired, the Ohio saving statute does not apply to permit commencement of a new action within one year.” Id. at Syllabus.
In reaching its decision, the Supreme Court analyzed its prior cases addressing the scope of the statute and found that Howard was still good law and controlled. The court explained that in Howard, it “considered whether R.C. 2305.19 saved an action originally commenced in a common pleas court in South Carolina and unanimously held the statute “is not applicable to actions commenced or attempted to be commenced in foreign states.” (Emphasis added.) 30 Ohio St.2d at 132, 283 N.E.2d 167.” Portee, 2018-Ohio-3263, at ¶ 11. The court noted that it reached that conclusion by looking at the majority rule at that time, and by reviewing the word “commencement” as defined in the Ohio Rules of Civil Procedure – “Civ.R. 3(A) defines ‘commencement’ in Ohio as ‘(1) filing a complaint with the court and (2) obtaining service within one year from the filing.’ It is apparent that the word ‘court,’ as used in Civ.R. 3(A) refers to an Ohio court, since Rule 1(A) provides that the Ohio Rules of Civil Procedure be limited to ‘courts of this state.'” Id. at ¶ 12 (quoting Howard, 30 Ohio St.2d at 135) (emphasis in original).
The court further noted that the text of the saving statute had been amended twice since Howard but the General Assembly never abrogated Howard. Portee, 2018-Ohio-3263, at ¶ 13. “Although Howard involved an action originally commenced in a foreign state court and this case involves an action originally commenced in a federal court in a foreign state, that is a distinction without a difference for purposes of the saving statute, which contains no express exception for such circumstances.” Id. at ¶ 14. Thus, the Supreme Court held that “the Ohio saving statute generally does not apply to permit recommencement of an action in Ohio after the statute of limitations has expired if the plaintiff commenced the action in another state and failed otherwise than upon the merits.” Id. at ¶ 15.
As for other cases in which the Ohio Supreme Court had previously interpreted and applied R.C. 2305.19, and on which the plaintiff in Portee had relied, the court distinguished them. In Wasyk v. Trent, 174 Ohio St. 525, 191 N.E.2d 58 (1963), syllabus, the court there held that “[w]here a plaintiff institutes a civil action in a federal court and … that court, after a hearing, dismisses the action on th[e] ground [of lack of diversity], … such plaintiff can bring a new action in a court of this state under the provisions of Section 2305.19, Revised Code.” In Portee, the Supreme Court found that Wasyk was “not controlling in this case because it predated Howard and because the parties did not specifically dispute whether the savings statute could apply to an action originally commenced in a federal court. The dispute in Wasyk centered on [the] contention that the lack of subject-matter jurisdiction in the federal court rendered those proceedings ‘a nullity’ such that the savings statute did not apply.” Portee, 2018-Ohio-3263, at ¶ 18.
In Vaccariello v. Smith & Nephew Richards, Inc., 94 Ohio St.3d 380, 763 N.E.2d 160 (2002), the Supreme Court held that the “‘filing of a class action, whether in Ohio or the federal court system, tolls the statute of limitations as to all asserted members of the class who would have been parties had the suit been permitted to continue as a class action,’ id. at syllabus, and we ‘modif[ied] Howard to the extent that it conflicts with this holding,’ id. at 383 (lead opinion).” Portee, 2018-Ohio-3263, at ¶ 20. Vaccariello, therefore, was “distinguishable on its facts in that it modified Howard solely in the context of class-action litigation, and the policy reason for that modification is not implicated in this case.” Id. at ¶ 22.
Finally, Osborne v. AK Steel/Armco Steel Co., 96 Ohio St.3d 368, 2002-Ohio-4846, 775 N.E.2d 483, was a case where the plaintiff filed an age discrimination suit in federal court that was dismissed without prejudice and plaintiff later refiled her claim in state court. The Supreme Court allowed that case to proceed, rejecting the defendant’s claim that the saving statute did not apply to age discrimination claims. The Supreme Court found that Osborne was distinguishable because “the singular issue in that case was whether the statute of limitations in R.C. Chapter 4112 precluded application of the saving statute.” Portee, 2018-Ohio-3263, at ¶ 24.
To reiterate, “[i]f an action is commenced in another state in either a state or federal court and fails otherwise than upon the merits, and the statute of limitations for commencement of such action has expired, the Ohio saving statute does not apply to permit commencement of a new action within one year.” Id. at ¶ 25. Thus, if you file your case outside of the state of Ohio, either in state or federal court, be careful. Know the governing statute of limitations for your claim, because the Ohio saving statute will not save you if your case is dismissed in that other state for reasons other than on the merits and the Ohio statute of limitations has run.