Indiana Court of Appeals: Calculating Statutes of Limitations for Actions Accruing on February 29th

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At the time of writing, we sit on the cusp of 2020. For those of us who have spent many decades subject to the Gregorian calendar, we are keenly aware that nearly every four years a leap day is added to the calendar, which is slotted into the 29th day of February. For those of you wondering about the qualifier of “nearly every four years,” there is no leap day observed in years divisible by 100, unless the year is also divisible by 400; accordingly, there was a leap day in 2000 but will not be one in 2100.

Due to the quirk of the leap day, a problem arises in calculating the statute of limitations for a cause of action that accrued on February 29th and expires in a non-leap year. That issue was recently addressed by the Indiana Court of Appeals in McElwee v. Fish. There, the plaintiff filed suit on March 1, 2018. So the question became if, as the majority concluded, February 29, 2016 was the proper accrual date for the plaintiff’s claims, then the question was whether March 1, 2018 was within the governing two-year statute of limitations.

Ever since the Indiana Court of Appeals’ 1975 decision in Jenkins v. Yoder, the rule has been that statutes silent as to the method of computation are subject to Indiana Trial Rule 6(A), which provides:

In computing any period of time prescribed or allowed by these rules, by order of the court, or by any applicable statute, the day of the act, event, or default from which the designated period of time begins to run shall not be included. The last day of the period so computed is to be included unless it is:

(1) a Saturday,

(2) a Sunday,

(3) a legal holiday as defined by state statute, or

(4) a day the office in which the act is to be done is closed during regular business hours.

In any event, the period runs until the end of the next day that is not a Saturday, a Sunday, a legal holiday, or a day on which the office is closed. When the period of time allowed is less than seven [7] days, intermediate Saturdays, Sundays, legal holidays, and days on which the office is closed shall be excluded from the computations.

Using Trial Rule 6(A), the final day to file a claim subject to a two-year statute of limitations is the second anniversary of the date on which the claim accrued. So, for example, if a claim accrued on August 25, 1987, then the deadline to file under a two-year statute of limitations is August 25, 1989. Similarly, if the claim accrued on August 5, 2007, then the lawsuit must be filed on August 5, 2009. You may notice that in the latter example, there was a leap year (2008) in between, yet it did not impact the calculation.

When leap days are concerned, there is no February 29th two, six, or ten years later. So what happens? The obvious choice is between the deadline falling on either February 28th or March 1st. The Jenkins court resolved that choice and held that it falls on February 28th. Accordingly, the complaint that was filed on March 1, 2018 was untimely for an action that accrued on February 29, 2016.

Although the court did not provide a tremendous amount of analysis, a point of clarification may be found in what the court provided. The court wrote:

Here, the claim accrued on February 29, 2016, when Fish learned of the disbursement. The start date in the computation of time under Indiana Trial Rule 6(A) . . . would be March 1, 2016, and the end date would be February 28, 2018. More specifically, the action accrued on February 29, 2016. The start date was March 1, 2016. The first year would end on February 28, 2017, and the second year would end on February 28, 2018. Consequently, Fish’s tort claim for negligence is barred by the statute of limitations because it was filed one day late.

I take that passage to mean that the date marking the first date after the accrual and the final date for filing should not be the same absent an extension of the limitations period due to the closure of courts. Regardless of the depth of the analysis, we now have a hard-and-fast rule: claims accruing on February 29th must be filed by February 28th if the statute of limitations ends in a non-leap year.

Some of you may be wondering what happens when a claim accrued in a non-leap year but the statute of limitations falls in a leap year. The issue has been touched upon by the Indiana Court of Appeals, though not fully addressed. In Taylor v. Jensen, the court found that a claim that accrued on March 1, 1978 was timely filed on February 29, 1980. What the opinion does not tell us, however, is whether the claim filed on March 1, 1980 would have been timely. Based upon what may be taken from Jenkins—that the first date after accrual and the final date of the statute of limitations should not be one in the same—and our example of August 5, 2007 being timely filed on August 5, 2009, it appears the answer is that the Taylor v. Jensen claim would have been timely filed on March 1, 1980 because that day marked the two-year anniversary of accrual of the claim. In that light, it appears that the addition of a leap day has no impact on calculating the statute of limitations unless the leap day marks the date of accrual, in which case we return to the rule from Jenkins: claims accruing on February 29th must be filed by February 28th if the statute of limitations ends in a non-leap year.

Join us again next time for further discussion of developments in the law.

Sources

• McElwee v. Fish, 134 N.E.3d 1057 (Ind. Ct. App. 2019) (Altice, J.; Brown, J., dissenting).
• Jenkins v. Yoder, 163 Ind. App. 377, 377, 324 N.E.2d 520, 520 (1975) (Hoffman, J.).
• Taylor v. Lewis, 577 N.E.2d 986, 988 n.1 (Ind. Ct. App. 1991) (Miller, J.), trans. denied.
• Williams v. Gene B. Glick Co., No. 1:09-cv-1113-WTL-DML, 2010 U.S. Dist. LEXIS 58880, at *8, 2010 WL 2485609 (S.D. Ind. June 14, 2010) (Lawrence, J.).
• Taylor v. Jensen, 475 N.E.2d 315, 316 (Ind. Ct. App. 1985) (Conover, J.),trans. denied.

*Disclaimer: The author is licensed to practice in the state of Indiana. The information contained above is provided for informational purposes only and should not be construed as legal advice on any subject matter. Laws vary by state and region. Furthermore, the law is constantly changing. Thus, the information above may no longer be accurate at this time. No reader of this content, clients or otherwise, should act or refrain from acting on the basis of any content included herein without seeking the appropriate legal or other professional advice on the particular facts and circumstances at issue.