When Can the Passing of a Plaintiff Serve as a Basis for Equitable Tolling?

By Steven Siegler and Michael Quintman

A statute of limitations serves to prevent someone from suing on old or stale claims. Statutes of limitations “promote justice by preventing surprises through . . . revival of claims that have been allowed to slumber until evidence has been lost, memories have faded, and witnesses have disappeared.” Ord. of R.R. Telegraphers v. Ry. Express Agency, 321 U.S. 342 (1944). The “tolling” of a statute of limitations freezes the countdown clock, giving the plaintiff additional time to file their claim. A recent example would be state governments’ decisions to toll statutes of limitations for all actions in response to the COVID-19 pandemic, in recognition of the difficulty of pursuing litigation during the quarantine lockdowns of 2020 and the closing of courts nationwide.

Equitable Tolling

Equitable tolling is a principle which freezes the countdown clock when there is a legitimate reason for a plaintiff’s failure to meet the deadline. A court may invoke its powers of equity to toll a statute of limitations unless it would be unfair to subject the Defendant to liability for that extended period of time. Most statutes of limitations are subject to equitable tolling unless the underlying statute either implicitly or explicitly indicates otherwise. See Young v. United States, 535 U.S. 43, 49 (2002). For example, a plaintiff in federal court is entitled to equitable tolling only if they show that “(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way” and prevented timely filing. Holland v. Fla., 560 U.S. 631, 649 (2010); see New Castle Cty. v. Halliburton NUS Corp., 111 F.3d 1116, 1126 (3d Cir. 1997).

A common pitfall for plaintiffs seeking equitable tolling from courts is their failure to show that an extraordinary circumstance prevented them from filing. This relief is the sort that courts employ sparingly, Russo v. Am. Airlines, Inc., 340 F. App’x 816 (3d Cir. 2009), so plaintiffs should be careful when choosing to rely on it and should only do so as a last-ditch effort to preserve their rights. Many plaintiffs have petitioned for equitable tolling relief in circumstances where either they or their attorney failed to take timely action in prosecuting their claims through negligence or indifference. Unsurprisingly, these efforts often fail to hold up in court. For example, ignorance of the law and lack of counsel, Bluitt v. Houston Indep. Sch. Dist., 236 F.Supp.2d 703, 715 (S.D. Tex. 2002), inability to calculate the statute of limitations due to poor math skills, Foster v. Walgreen Co., 12 F. Supp. 3d 615, 618 (W.D.N.Y. 2014), attorney failure to satisfy professional standards of care, Holland, 560 U.S. at 649, or no excuse at all, Williams v. N.C. Admin. Off. of the Cts., 364 F. Supp. 3d 596 (E.D.N.C. 2018), are not winning arguments.   

Equitable Tolling When a Client Passes   

But what about the case of a plaintiff who passes after his claim accrues but before a complaint is filed? Assuming that the claim is one which passes to the estate of the decedent, the statute of limitations may continue to run. Most states have statutes which codify equitable tolling in the circumstance of death of a claimant and give the estate additional time to file. See, e.g., N.Y. CPLR § 210(a) (New York); N.J. Stat. § 2A:14-23.1 (New Jersey); M.G.L.A. 260 § 10 (Massachusetts); C.G.S.A. § 45a-375 (Connecticut); Cal. Civ. Proc. Code § 366.1 (California). In the absence of an equitable tolling statute, however, a legal practitioner must rely on the facts of his or her particular case and legal precedent to persuade the court to exercise its powers of equity. For example, in the case of Moses v. Westchester Cnty. Dept. of Corr., the court found that a confluence of factors, including the decedent’s death, made for a “perfect storm” of events which could warrant equitable tolling. 951 F.Supp.2d 448, 454 (S.D.N.Y. 2013).

Final Thoughts

Most states, but not all, have statutes which serve as a basis for obtaining equitable tolling relief from a court. For families who suffer the loss of a loved one, they provide an assurance that important legal claims are not discarded or lost during the process of arranging a funeral or settling an estate. These statutes also ensure that courts apply equitable tolling relief evenly in all cases, giving a standard length of time actions can be extended and putting everyone on notice that actions could be extended in that circumstance. The public policy behind these statutes is sound and should be adopted in every state.

Families of loved ones who have passed should promptly reach out to the attorneys of KI Legal to assist them in determining whether the deceased had any potential claims at their time of their death, and to assert those claims in court if appropriate. 

Please be advised that any information posted on the KI Legal Blog or Social Channels is being supplied for informational purposes only and is subject to change at any time. For more information, and clarity surrounding your individual organization or current situation, contact a member of the KI Legal team, or fill out a new client intake form. 

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This information is the most up to date news available as of the date posted. Please be advised that any information posted on the KI Legal Blog or Social Channels is being supplied for informational purposes only and is subject to change at any time. For more information, and clarity surrounding your individual organization or current situation, contact a member of the KI Legal team, or fill out a new client intake form.