Andrews v. Stam  (2006-354)

2007 VT 79

[Filed 17-Aug-2007]

  NOTICE:  This opinion is subject to motions for reargument under V.R.A.P.
  40 as well as formal revision before publication in the Vermont Reports. 
  Readers are requested to notify the Reporter of Decisions, Vermont Supreme
  Court, 109 State Street, Montpelier, Vermont 05609-0801 of any errors in
  order that corrections may be made before this opinion goes to press.


                                 2007 VT 79

                                No. 2006-354


  Anthony E. Andrews                                Supreme Court

                                                    On Appeal from
       v.                                           Addison Superior Court


  Kurt W. Stam                                      May Term, 2007


  Matthew I. Katz, J.

  James W. Swift and Devin McLaughlin of Langrock Sperry & Wool, LLP,
  Middlebury, for Plaintiff-Appellant.

  Sheldon M. Katz of Clark, Long, Werner & Flynn, Burlington, for
  Defendant-Appellee.


  PRESENT:  Reiber, C.J., Dooley, Johnson, Skoglund and Burgess, JJ.

        
       ¶ 1.     BURGESS, J.   Plaintiff Anthony Andrews appeals a superior
  court order dismissing his claim of negligence against defendant Kurt Stam
  for personal injuries sustained when the parties were involved in a two-car
  accident in Vermont.  Defendant moved to dismiss, based on plaintiff's
  failure to file suit within the three-year statute of limitations generally
  applicable to such claims.  The superior court initially denied the motion,
  then later granted defendant's motion to reconsider and dismissed
  plaintiff's action.  On appeal, plaintiff argues that the applicable
  statute of limitations is tolled when the defendant resides out of state
  and the suit concerns a motor vehicle accident in which the defendant was
  involved.  We agree that the statute of limitations is tolled in this
  instance and reverse.

       ¶ 2.     Plaintiff's complaint alleges that on January 19, 2002, he
  was traveling on Killington Road in Rutland when the car he was operating
  collided with a car operated by defendant.  Defendant was and remains a
  resident of the State of New York and owns no real property in Vermont. 
  Plaintiff first filed suit against defendant in Rutland Superior Court on
  January 7, 2005, and attempted personal service in New York.  The effort at
  personal service was unsuccessful, and the suit was eventually dismissed. 
  Plaintiff, with new counsel, filed the present case on December 6, 2005,
  and effectuated service on December 8, 2005 by serving the Vermont
  Commissioner of Motor Vehicles pursuant to 12 V.S.A. § 892.  

       ¶ 3.     Defendant, in his motion to dismiss, maintained that
  plaintiff's second action was barred by the three-year statute of
  limitations in 12 V.S.A. § 512(4).(FN1)  Plaintiff does not dispute that
  more than three years passed between the time the cause of action accrued
  and the commencement of his suit.  Rather, plaintiff argues that the
  statute of limitations was tolled by 12 V.S.A. § 552, which provides:

       If a person is absent from and resides out of the state after
       a cause of action accrues against him and before the statute
       has run, and he has not known property within the state which
       can by common process of law be attached, the time of his
       absence shall not be taken as a part of the time limited for
       the commencement of the action.

  It is undisputed that defendant resided out of state for the entire period
  and had no property in Vermont.  However, application of § 552 tolling has
  been significantly limited by case law where we have held that the section
  is inoperative when a defendant is amenable to service of process pursuant
  to the long arm statute, 12 V.S.A. § 913.  Fortier v. Byrnes, 165 Vt. 189,
  192-93, 678 A.2d 890, 892 (1996).  Defendant argues that Fortier controls
  and plaintiff should not have the benefit of tolling when defendant was
  subject to personal jurisdiction and amenable to service under the long arm
  statute. 

       ¶ 4.     Plaintiff counters that there is an exception to Fortier's
  rule when the defendant has been served via the Commissioner of Motor
  Vehicles under 12 V.S.A. §§ 891 and 892.  Those sections allow for service
  upon the Commissioner as agent for a defendant in actions regarding any
  accident in which a defendant was operating a motor vehicle. 
  Significantly, § 892(b) states that this manner of service "shall be in
  addition to all existing manner of service, rights and remedies, and the
  availability of such manner of service shall not make the provisions of
  section 552 of this title inoperative, relative to tolling of the statute
  of limitations."  Plaintiff maintains that § 892(b) applies and explicitly
  requires that § 552's tolling provision be applied in this case,
  notwithstanding his ability to serve process under the long arm statute.
   
       ¶ 5.     In support of his argument for application of § 892(b) to
  require tolling, plaintiff recounts the history of that statute.  The
  original versions of what are now §§ 891 and 892, enacted in 1925, did not
  contain a provision equivalent to § 892(b).  1925, No. 70, § 120. 
  Accordingly, in 1959, we held that a tolling provision for nonresident
  defendants did not apply when the defendant could be served pursuant to §§
  891 and 892.  Law's Adm'r v. Culver, 121 Vt. 285, 288-89, 155 A.2d 855,
  857-58 (1959) ("[The tolling] provisions were intended to apply only to
  defendants who, for the reasons therein stated, are not amenable to service
  of process under authority of this state within the two year period."). 
  Less than two years later, in 1961, the Legislature amended § 892 by adding
  the statement that availability of service to the Commissioner "shall not
  make the provisions of 12 V.S.A. § 552 inoperative, relative to the tolling
  of the statute of limitations."  1961, No. 134.  From these circumstances,
  plaintiff infers that the 1961 amendment was a direct repudiation of Law's
  Administrator and an indication of the Legislature's intent for tolling to
  apply when service is made upon the Commissioner.  See Thayer v. Herdt, 155
  Vt. 448, 452, 586 A.2d 1122, 1124 (1990) (noting that 1961 amendment was
  "in obvious response to the holding in Law's Administrator").

       ¶ 6.     Defendant does not contest that the effect of the 1961
  amendment was to overrule Law's Administrator, but instead maintains that a
  subsequent amendment to the long arm statute should control.  The long arm
  statute was amended in 1968 by adding § 913(b), which extended Vermont
  jurisdiction over individual parties residing out of state to include all
  "personal judgment" suits to the extent permitted by due process.  1967,
  No. 353 (Adj. Sess.), § 4; see Thayer, 155 Vt. at 452, 586 A.2d at 1124
  (describing expansion of personal jurisdiction).  The statute also provides
  that the availability of personal service under § 913(b) is "alternative
  and not inoperative" to §§ 891 and 892 service to the Commissioner.  12
  V.S.A. § 913(c).  This expansion of the long arm statute, according to
  defendant, supersedes any intent the Legislature had in allowing indefinite
  tolling for service to the Commissioner.  The essential issue, finally, is
  whether the long arm statute, as amended in 1968 to permit service of
  process outside the state for personal judgment actions, effectively
  superseded the 1961 amendment to § 892(b).  From this dog's breakfast of
  countervailing rules and exceptions, we conclude that it did not.     
   
       ¶ 7.     In Thayer we first confronted the applicability of a
  nonresident-defendant tolling provision--for wrongful death claims in that
  case--to the expanded long arm statute.  155 Vt. at 451, 586 A.2d at 1124. 
  We noted that the question was analogous to application of tolling to the
  pre-1961 version of § 892: whether the Legislature intended to allow
  tolling for nonresident defendants despite the availability of a method of
  service.  Id.  We recalled our holding in Law's Administrator that tolling
  was not available when service upon the Commissioner was available because
  the purpose of tolling is to preserve a right of action during the time it
  is impossible to serve process.  Id.  We noted the 1961 amendment's effect
  in overruling Law's Administrator by mandating that tolling still apply to
  service upon the Commissioner and the Legislature's failure to include a
  similar provision in the long arm statute.  Id. at 452-53, 586 A.2d at
  1124.  We reasoned that omission from the long arm statute of anything
  analogous to § 892(b) exhibited legislative intent that the rationale of
  Law's Administrator and similar cases be applied to the long arm statute to
  make tolling inoperative when a defendant is amenable to service by that
  law.  Id. at 452-53, 586 A.2d at 1124-25.
   
       ¶ 8.     Defendant urges that plaintiffs should not be allowed to
  circumvent statutes of limitations by choosing to serve the Commissioner
  when the long arm statute makes personal service available at any time. 
  Defendant's argument essentially uses the same rationale as we did in Law's
  Administrator, not to apply tolling when other service is available.  This
  is the same rationale that was rejected by the Legislature for cases
  involving service upon the Commissioner when it enacted the 1961 amendment
  to § 892.  Furthermore, accepting defendant's argument would render the
  1961 amendment virtually nugatory because the tolling it purports to make
  available would nearly always be inoperative provided the defendant was
  amenable to long arm service.  We construe statutes, when possible, to
  avoid such results.  See Holton v. Dep't of Employment & Training, 2005 VT
  42, ¶ 21, 178 Vt. 147, 878 A.2d 1051 ("Our rules of statutory construction
  require us to consider the statute as a whole, giving effect to a statute's
  every word, sentence, and clause, when possible.").  Because statutes of
  limitation are strictly creatures of legislative construct, Major League
  Baseball v. Morsani, 790 So. 2d 1071, 1077 (Fla. 2001) ("statutes of
  limitation were unknown at common law"), questions concerning the fairness
  or wisdom of singling out cases with nonresident defendants involved in
  motor vehicle accidents for application of tolling are best directed to
  that branch.  See Egri v. U.S. Airways, Inc., 174 Vt. 443, 445, 804 A.2d
  766, 769 (2002) (mem.) (rejecting policy arguments for uniform limitation
  period for Fair Employment Practices Act claims as "better directed to the
  Legislature").   

       Reversed and remanded.


  FOR THE COURT:



  _______________________________________
  Associate Justice

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FN1.  "Actions . . . shall be commenced within three years" for "injuries
  to the person suffered by the act or default of another person, provided
  that the cause of action shall be deemed to accrue as of the date of the
  discovery of the injury."  12 V.S.A. § 512(4).
