In Omobien v. Flinn, (9th Dist.) 2021-Ohio-2096, the Ohio Ninth District Court of Appeals upheld the dismissal of a re-filed personal injury lawsuit on the basis that the Complaint failed to contain allegations setting forth an exception to the 2-year statute of limitations.

In Ohio, the statute of limitations on personal injury claims is two (2) years. See R.C. 2305.10(A).

In Omobien, the plaintiffs were in a motor vehicle collision on March 11, 2016. Applying the two-year statute of limitations, they would have to file their lawsuit by March 11, 2018. The Omobiens did, in fact, timely file a lawsuit within the two-year statute of limitations. Here’s where it gets interesting.

On May 8, 2019, the Omobiens voluntarily dismissed their initial lawsuit. Since the case was already timely filed but voluntarily dismissed - meaning the plaintiffs chose to dismiss the claim with the ability to re-file - Ohio’s Savings Statute, R.C. 2305.19(A) would apply to the time to re-file the action. The Savings Statute states:

(A) In any action that is commenced or attempted to be commenced, if in due time a judgment for the plaintiff is reversed or if the plaintiff fails otherwise than upon the merits, the plaintiff or, if the plaintiff dies and the cause of action survives, the plaintiff's representative may commence a new action within one year after the date of the reversal of the judgment or the plaintiff's failure otherwise than upon the merits or within the period of the original applicable statute of limitations, whichever occurs later. This division applies to any claim asserted in any pleading by a defendant.

Applying the Savings Statute, the Omobiens would have the ability to re-file their Complaint on or before May 8, 2020. The Omobiens did just that and re-filed their Complaint on May 8, 2020.

So what was the issue? In the re-filed Complaint, the Omobiens failed to plead an exception to the statute of limitations, i.e., facts that would show the Savings Statute applies. For example: “Plaintiffs previously filed a Complaint on _________ in Summit County Case # ________ which was voluntarily dismissed on May 8, 2019. Plaintiffs are re-filing this action pursuant to the time limitations in R.C. 2305.19(A).” That would have been sufficient, however, based upon the four corners of the re-filed Complaint, the trial court applied the two-year statute of limitations and dismissed the re-filed Complaint.

The Ohio Ninth District Court of Appeals affirmed the dismissal and the opinion is below.