The Impact of COVID Emergency Orders on the Tolling of Civil Statutes of Limitations

COVID-19 has had numerous, lingering effects on our lives as litigators. One not often discussed is the effect that emergency orders issued during the spring and summer of 2020 will have on our calculation of statutes of limitations. Since the limitations period for some causes of action are many years long, we will be living with this effect of the pandemic for many years to come.

During the pandemic’s first surge, state governments throughout the country issued emergency orders that addressed not only virtual proceedings, jury trials, and access to courthouses but also court deadlines and statutes of limitation. Variously worded emergency orders tolled statutes of limitations for civil causes of action during the period in which courts were closed or operating on an emergency basis. One central difference among these orders was that some tolled only those statutes of limitation that were set to expire within particular “emergency” periods while others more broadly tolled all statutes of limitation for that period--the latter effectively adding weeks or months to the limitations period for any claim that had not become time-barred before the judicial emergency began.

For instance, on the “narrow” side, Administrative Order No. 6 of the Delaware Supreme Court provided in relevant part, at Paragraph 9:

Statutes of limitations and statutes of repose that would otherwise expire during the period between March 23, 2020 and June 13, 2020 are extended through July 1, 2020. Deadlines, statutes of limitations, and statutes of repose that are not set to expire between March 23, 2020 and June 13, 2020 are not extended or tolled by this order.

By contrast, the Maryland courts swept with a broader brush:

All statutory and rules deadlines related to the initiation of matters required to be filed in a Maryland state trial or appellate court, including statutes of limitations, [are] tolled or suspended, as applicable, effective March 16, 2020, by the number of days that the courts [are] closed to the public due to the COVID-19 emergency. . . .  For the purposes of tolling of statutes of limitations and other deadlines related to the initiation of matters, in this Order, “tolled or suspended by the number of days that the courts were closed” means that the days that the offices of the clerks of court were closed to the public (from March 16, 2020 through July 20, 2020) do not count against the time remaining for the initiation of that matter.

Second Revised Administrative Order on the Emergency Tolling or Suspension of Statutes of Limitations and Statutory and Rules Deadlines (June 3, 2020, since rescinded).

A recent Massachusetts decision, Shaw’s Supermarkets, Inc. v. Margarita Melendez, 488 Mass. 338 (2021), demonstrates the difference between these two approaches. The plaintiff in the underlying suit was injured in one of the defendant’s stores on September 3, 2017. She filed suit on September 20, 2020--after the three-year statute of limitations normally would have run. The defendant moved to dismiss, arguing that a series of emergency orders by the Massachusetts Supreme Judicial Court only tolled the limitations period for claims that otherwise would have become time-barred during the state of emergency and thus did not affect the statute of limitations as applied to plaintiff’s claim. On the defendant’s appeal from the trial court’s denial of its motion to dismiss, the plaintiff argued that the Court’s emergency orders had tolled all statutes of limitation for the period March 17, 2020 to June 30, 2020, effectively adding 105 days to every existing limitations period, including hers. The Court, affirming, agreed that this was indeed what its several emergency orders (which were perhaps not as clear as either of the examples quoted above) had collectively meant.

It is very important to understand how the jurisdictions where you practice treated the tolling of statutes of limitation during the pandemic states of emergency because the tolling and calculation of statutes of limitations will be complicated by these orders (and disputes about them) for years to come.

With a hat tip to the law clerks at the Massachusetts Supreme Judicial Court, here is a list (sourced from the footnotes of the Melendez decision), characterizing COVID-emergency tolling in about half the states:  

Narrow approach to tolling:  

• Delaware (Supreme Court Administrative Order No. 3, Mar. 22, 2020)
• New Hampshire (Supreme Court Renewed and Amended Order Suspending In-Person Court Proceedings and Restricting Public Access to Courthouses, Mar. 27, 2020)
• North Carolina (Order of the Chief Justice, May 21, 2020)
• Ohio (House Bill No. 197, effective Mar. 27, 2020);
• Tennessee (In re: COVID-19 Pandemic, No. ADM2020-00428 (Tenn. Mar. 13, 2020))
• Texas (Twelfth Emergency Order Regarding COVID-19 State of Disaster, No. 20-9059 (Tex. Apr. 27, 2020))
• Vermont (Senate Bill No. 114, effective Apr. 28, 2021)
• West Virginia (Supreme Court of Appeals Administrative Order re Judicial Emergency, Mar. 22, 2020)

Broad approach to tolling:

• California (Judicial Council Emergency Rules Related to COVID-19, No. 9, amended effective May 29, 2020)
• Connecticut (Executive Order No. 7G, Mar. 19, 2020)
• Georgia (Supreme Court Order Extending Declaration of Statewide Judicial Emergency, May 11, 2020)
• Indiana (Order Extending Trial Courts’ Emergency Tolling Authority and Setting Expiration of Other Emergency Orders, No. 20S-CB-123 (Ind. May 29, 2020))
• Iowa, Matter of Ongoing Provisions for Coronavirus/COVID-19 Impact on Court Services (Iowa Mar. 17, 2020)
• Kansas (Supreme Court Administrative Order No. 2020-PR-047, May 1, 2020)
• Louisiana (Executive Department Proclamation No. JBE 2020-30, Mar. 16, 2020)
• Maryland (Court of Appeals Second Revised Administrative Order on the Emergency Tolling or Suspension of Statutes of Limitations and Statutory and Rules Deadlines, June 3, 2020)
• Michigan (Supreme Court Administrative Order No. 2020-3, Mar. 23, 2020)
• Minnesota (House Bill H.F. No. 4556, effective Apr. 16, 2020)
• Nevada (Executive Department Declaration of Emergency Directive No. 009, Revised, Apr. 1, 2020)
• New Jersey (Supreme Court Order, Mar. 17, 2020)
• New York, Executive Order No. 202.8 (Mar. 20, 2020)
• Oklahoma (Third Emergency Joint Order Regarding the COVID-19 State of Disaster, No. 2020-36 (Okla. Apr. 29, 2020)
• Oregon (House Bill No. 4212, effective June 30, 2020)
• Virginia (Supreme Court Order Declaring a Judicial Emergency in Response to COVID-19 Emergency, Mar. 16, 2020).
• District of Columbia (Superior Court Order, amended Mar. 19, 2020)

Practitioners should also be sure that they stay abreast of any future judicial guidance on the running and tolling of civil statutes of limitations that may affect the legal claims of their clients.