WEST VIRGINIA RECORD

CHARLESTON – A woman who filed suit against the State over two years after tripping on a pavement indentation in a state park will not be able to proceed after the state Supreme Court ruled that she filed her complaint outside the statute of limitations.

The court voted unanimously on June 28 to affirm the dismissal of the case by the Circuit Court of Summers County.

Plaintiff/petitioner Beverly Saunders filed a personal injury complaint for damages against Frank Jezioro, director of the West Virginia Division of Natural Resources, on Aug. 29, 2011. Saunders alleged that she had fallen and been injured after tripping on an indentation on the blacktop at Pipestem Resort State Park Amphitheater on Aug. 1, 2009.

It was undisputed, the opinion states, that Saunders timely mailed the pre-suit notice of her claim to the state Attorney General, pursuant to West Virginia Code § 55-17-3, on July 19, 2011, with return receipt signed on July 20, 2011. It was also undisputed that her complaint was filed on Aug. 29, 2011.

And therein lies the rub.

“The circuit court opined that the statute of limitations for petitioner’s personal injury action began to run on August 1, 2009, the date of her injury," the opinion says. “The circuit court further ruled that petitioner properly served pre-suit notice on July 19, 2011, and the date of the return receipt was July 20, 2011.

“Therefore, the thirty day tolling period began on July 20, 2011. Also, the circuit court found that the last day for petitioner to timely file suit was on August 20, 2011. Since petitioner filed her complaint nine day later, on August 29, 2011, the circuit court ruled that petitioner’s complaint was untimely filed. It is from this order that petitioner now appeals.”

On appeal, Saunders argued that the circuit court misinterpreted the tolling provision of West Virginia Code § 55-17-3. She argued that the two-year statute of limitations should have been suspended for 30 days once the proper pre-suit notice was given. If this were the case, Saunders would have had until Aug. 30, 2011, to file her complaint and the complaint would have been ruled timely.

The State argued that since Saunders filed the notice inside the final 30 days of the statute of limitations, the complaint had to be filed 30 days from the date of reception of the notice. It was not the intention of the Legislature to automatically add 30 days on to the statute of limitations after a notice is filed, the State asserted.

“Petitioner’s statute of limitations was set to expire on August 1, 2011. However, under the facts of this case and the plain language of the statute, the expiration of the applicable statute of limitations was tolled for thirty days from the date of the return receipt on July 20, 2011, to allow petitioner to properly comply with the statute,” the court reasoned.

“Thus, under the plain language of the statute, petitioner’s complaint should have been filed no later than August 20, 2011. Therefore, petitioner’s complaint filed on August 29, 2011, was untimely.”