The statute of limitations may be tolled where an alleged tortfeasor or its liability insurer makes an advance payment to an injured person without notifying such person of the applicable limitations period. ( Blevin v. Coastal Surgical Institute (2015) 232 Cal.App.4th 1321)
Facts
On September 1, 2010, Charles Blevin had knee surgery at Coastal Surgical Institute. After the surgery, Blevin’s knee became infected allegedly due to unsterile surgical equipment used during the surgery.
On October 12, 2010, Coastal paid Blevins over $4,000 for the medical expenses he had incurred in treating the knee infection. At the time Coastal made the payment, Blevins was not represented by counsel, and Coastal did not give Blevins written notice of the applicable statute of limitations for a medical malpractice action. Blevins did not sign any agreement releasing Coastal from liability.
On January 24, 2012, more than 15 months after Blevin’s receipt of Coastal’s payment, Blevins filed a medical malpractice action against Coastal. Coastal responded by asserting that Blevin’s lawsuit was time-barred by Code of Civil Procedure section 340.5. That section provides that the statute of limitations in a medical malpractice action is “three years after the date of injury, or one year after the plaintiff discovers or through the use of reasonable diligence should have discovered the injury, whichever occurs first.”
The trial court concluded that the shorter one-year period in Code of Civil Procedure section 340.5 was “tolled” because Coastal had paid Blevin’s medical expenses without simultaneously informing Blevin of the applicable statute of limitations. The trial court thus allowed Blevin’s case against Coastal to be heard by a jury, which returned a verdict in favor of Blevin and against Coastal. Coastal appealed, again asserting that Blevin’s lawsuit was barred by the applicable statute of limitations.
Holding
The Court of Appeal affirmed. The appellate court reasoned that pursuant to Insurance Code section 11583, “[n]o advance payment or partial payment of damages made by any person, or made by his insurer …, as an accommodation to an injured person … shall be construed as an admission of liability by the person claimed against, or of that person’s or the insurer’s recognition of such liability…. Any person, including any insurer, who makes such an advance or partial payment, shall at the time of beginning payment, notify the recipient thereof in writing of the statute of limitations applicable to the cause of action which such recipient may bring against such person as a result of such injury …. Failure to provide such written notice shall operate to toll any such applicable statute of limitations or time limitations from the time of such advance or partial payment until such written notice is actually given . That notification shall not be required if the recipient is represented by an attorney.” (Italics added.)
According the appellate court, the tolling provisions of Insurance Code section 11583 could extend the shorter one-year statute of limitations set forth in Code of Civil Procedure section 340.5 up to a maximum of three years from the date of injury. Here, at the time Coastal had made the advance payment to Blevin, Blevin did not have a lawyer, and Coastal did not inform Blevin of the applicable statute of limitation. That had the effect of tolling the statute of limitations applicable to Blevin’s claim against Coast. Blevin ultimately filed his medical malpractice lawsuit against Coastal after the shorter one-year statutory period had expired, but before the three-year maximum period had expired. As such, Blevin’s lawsuit against Coastal was timely.
Comment
As Insurance Code section 11583 make clear, if an alleged tortfeasor or its insurer makes an advance or partial payment of damages to an injured party who is not represented by counsel, the alleged tortfeasor or its insurer is required to give the injured party written notice of the applicable statute of limitations. A failure to do so tolls the statute of limitations until notice is actually given. The rationale is that an advance or partial payment by the alleged tortfeasor or its insurer reasonably suggests that the alleged tortfeasor or its insurer intend to cooperate with the injured party, which can thus lull the injured party into a false sense of complacency about the need to sue.