Statute of Limitation Does Not Toll Until Issuance of Summons

October 17, 2006

The Court of Appeals recently published Nanny v. Smith,which determined when the statute of limitation tolled for a tort claim arising from an automobile accident. The Complaint was filed within two years of the last PIP payment. However, the Clerk did not issue summons until a day after the statute of limitation period ran.

The sole issue was whether a plaintiff had an affirmative duty to see that a summons was issued within the limitations period. Civil Rule 3.01 declares a civil action commenced upon both the filing of a complaint and the issuance of a summons. This rule is strictly enforced. ““Kentucky courts have consistently held that whatever statute of limitations applies, it is not tolled until summons is issued.”” “As such, the trial court correctly determined that Nanny’’s action was not deemed commenced on the date the complaint was delivered to the clerk, but was, in fact, time barred as a result of the summons being issued after the expiration of the limitations period.”

This is a harsh result. Especially on the issuance of a summons over which the attorney has no real involvement. Last minute filings should be avoided to help prevent this from happening, but can’t always be avoided. Summons must issue within the limitation period to prevent this result.

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