Thompson v. Thompson
2012 ND 15
N.D.2012Background
- American Family sued Waupaca Elevator for damages to a West Fargo apartment building arising from a 2004 injury.
- Complaint was sent by fax and mail to the Outagamie County Sheriff’s Department on December 30, 2010 for service.
- Sheriff served an officer of Waupaca Elevator on January 4, 2011; agent of Waupaca Elevator received certified mail copies January 4, 2011.
- District court dismissed as untimely, holding service occurred outside the six-year statute of limitations.
- North Dakota Supreme Court reversed, holding service on December 30, 2010 was timely under the six-year limit and proper under service statutes.
- Court applied former Rule 6(a) to compute time and held accrual occurred December 31, 2004, beginning six-year limit then.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness of service within statute | American Family timely served within six years. | Service occurred after the deadline or not within six years. | Service timely; within six-year period. |
| Accrual date and computation | Accrual 2004; time counted from 2004, last day 2010. | Different accrual or computation method. | Accrual December 30, 2004; countdown began December 31, 2004; last day December 30, 2010. |
| Method of computing time under Rule 6(a) | Rule 6(a) excludes accrual day and counts to last day. | Other interpretations could apply. | Former Rule 6(a) used; last day included unless holiday; counts to December 30, 2010. |
| Proper service method under ND law | Delivery to sheriff with intent to have served within period suffices. | Must be actual service on last day or within; intent insufficient. | Delivery to sheriff within period with intent to have served suffices; service proper under §28-01-38 and Rule 4(d). |
Key Cases Cited
- Erickson v. Scotsman, Inc., 456 N.W.2d 535 (N.D. 1990) (statutes of limitation aim to prevent stale claims)
- Long v. Jaszczak, 2004 ND 194 (N.D. 2004) (discovery rule; accrual when injury and negligence known)
- Elliot v. Drayton Pub. Sch. Dist. No. 19, 406 N.W.2d 655 (N.D. 1987) (delivery with bona fide intent to serve timely commences action)
- Galehouse v. Minneapolis, St. Paul & S.S.M. Ry. Co., 135 N.W. 189 (N.D. 1912) (precedent on timeliness and service delivery)
- Dundee Mut. Ins. Co. v. Balvitsch, 540 N.W.2d 609 (N.D. 1995) (statutes must be read as a whole and harmonized)