On a crisp fall morning, Donald wakes up, brushes his teeth, has morning coffee, starts his walk to work and is immediately run over by a taxi owned and operated by Quentin Smith. Smith was driving the tiny Smart Car cab down the sidewalk to avoid rush hour traffic, and had become distracted while texting.
Donald was seriously injured and Smith was obviously negligent, but Donald inexplicably fails for years to file a lawsuit for damages. At 3:00 PM, on the third anniversary of the accident, Donald finally contacts a Boston lawyer about the accident, which happened in Massachusetts. The lawyer instantly recognizes that the three year statute of limitations for negligence claims either has expired or is about to expire. Massachusetts G.L. c. 260, §2A provides: “actions of tort … shall be commenced only within three years next after the cause of action accrues.” She dashes off a Complaint, runs to the courthouse and files the action at 4:59 PM that day.
But is she too late? If the day of the accident is counted as part of the limitations period, then three years would expire the day before the anniversary date. However, if the day of the accident is not counted, then the period would expire on the third anniversary.
Massachusetts courts do not count the day on which a cause of action accrues (usually the day of the accident in negligence actions) as part of the limitations period. In Poy v. Boutselis, 352 F.3d 479, 484 (1st Cir. 2003), the United States Court of Appeals for the First Circuit explained that, “long standing Massachusetts precedent exclude[s] the date of accrual from the calculation of the limitations period” under c.260, §2A). See also O’Malley v. Town of Egremont, 453 F.Supp.2d 240, 245 (D. Mass. 2006) (holding that complaint was timely filed under §2A when filed on the third anniversary of accrual. The Court cited Poy as “confirming that, under both federal and Massachusetts rules, the last day for filing civil rights actions is the third anniversary date of the event” (internal quotation marks omitted)); Vaughn v. American Automobile Association, Inc., 326 F.Supp.2d 195, 198 n.2 (D. Mass. 2004)(“Under Massachusetts law, the time period [under c.260, §5A] begins to run one day after the cause of action accrues, with the last day for filing suit being the anniversary date of the event” (internal quotation marks omitted)); Opinion of the Justices, 291 Mass. 572, 574 (1935)(“The computation of time from a date, event or act excludes the day from which the time begins to run”); Sweeney v. Morey & Co., 279 Mass. 495, 502-03 (1932) (“In computing time from a date, act or event, the settled rule, here applicable is to exclude the day from which the period of time runs unless contrary intention is disclosed by the statute, instrument or contract with respect to which the question arises”); Bemis v. Leonard, 118 Mass. 502, 506 (1875) (“In this Commonwealth, the general rule, as applied in a variety of circumstances, and now well established, is, that in computing time from the date, or from the day of the date, or from a certain act or event, the day of the date is to be excluded, unless a different intention is manifested by the instrument or statute under which the question arises.”).
The federal courts apply the same rule, not counting the day of accrual, even when the limitations period is specified in a federal statute. They incorporate the time counting provisions of Fed. R. Civ. P. 6(a), which state,
When the period is stated in days or a longer unit of time:
(A) exclude the day of the event that triggers the period;
(B) count every day, including intermediate Saturdays, Sundays, and legal holidays; and
(C) include the last day of the period, but if the last day is a Saturday, Sunday, or legal holiday, the period continues to run until the end of the next day….
In Kollios v. United States, 512 F.2d 1316, 1316-17 (1st Cir. 1975), the United States Court of Appeals for the First Circuit held that where a cause of action accrued on July 23, 1973, a six month limitations period expired on January 23, 1974, the six month anniversary of the date of accrual. According to the United States District Court for the District of Massachusetts in Bell v. U.S., 1986 WL 13401, *1 (D. Mass. 11/20/86),
The accrual date of the plaintiff’s claim in this case was the date of the accident, February 3, 1984. In accordance with Fed.R.Civ.P. 6(a) and the so-called “modern doctrine” followed in this circuit, … the limitation on the plaintiff’s claim began to run on February 4, 1984 and ended on February 3, 1986. Thus, the plaintiff must have presented his claim on or before February 3, 1986, or his action is barred by the § 2401(b) statute of limitations.
(footnote reference omitted)).
Other federal courts apply the same rule. The court in Johnson v. Riddle, 305 F.3d 1107 (10th Cir. 2002), noted that, with only one possible exception, every circuit to have addressed the issue has held that the day of the event is excluded from the limitations period. See also Mattson v. U.S. West Communications, Inc., 967 F.2d 259, 262-63 (8th Cir. 1992) (McMillian, J. dissenting); Lawson v. Conyers Chrysler, Plymouth and Dodge Trucks, Inc., 600 F.2d 465, 465-66 (5th Cir. 1979) (applying rule to TILA statute of limitations); Krajci v. Provident Consumer Discount Co., 525 F.Supp. 145, 150 (1981), aff’d 688 F.2d 822 (3rd Cir. 1982) (applying rule to TILA statute of limitations); McMillon v. Budget Plan of Virginia, 510 F.Supp. 17, 19 (E.D. Va. 1980) (applying rule to TILA statute of limitations); Gammons v. Domestic Loans of Winston-Salem, Inc., 423 F.Supp. 819, 822 (M.D. N.C. 1976) (applying rule to TILA statute of limitations); Braggs v. JIM Skinner Ford, Inc., 396 So.2d 1055, 1060 (Ala. 1981) (holding, “in accordance with the great weight of authority … [that] the date of the TILA violation is not to be included when figuring whether the complaint was filed within one year”). As the Johnson court explained, the one circuit court to have taken a contrary position (the Eighth circuit in Matson) may have more recently abandoned that position.
Despite his procrastination, Donald’s action is not time barred.