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24953 - Tiralango v. Balfry

Shearouse Adv. Sh. No. 20
S.E. 2d

THE STATE OF SOUTH CAROLINA

In The Supreme Court

Joseph S. Tiralango, Respondent,

v.

Theberge Celine Balfry, Petitioner.

Appeal From Charleston County

H. Dean Hall, Circuit Court Judge

Opinion No. 24953

Heard April 6, 1999 - Filed June 14,1999

REVERSED

Richard A. Farrier, Jr. and Dierdre Shelton McCool,

both of Nelson, Mullins, Riley & Scarborough, LLP,

of Columbia, for petitioner.

Thomas W. Greene, of Greene Law Firm, of

Charleston, for respondent.

WALLER, A.J.: We granted a writ of certiorari to review the Court of

Appeals' decision in Tiralango v. Balfry, 329 S.C. 228,495 S.E.2d 234 (Ct. App.

1997). We reverse.







FACTS



Tiralango, a New York resident, and Balfry, a Quebec resident, were

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TIRALANGO v. BALFRY





involved in an auto accident in Myrtle Beach on April 5, 1992. A police report

showing Balfry's address was prepared on the day of the accident. However,

Tiralango did not learn the address until he wrote for and received a copy of the

police report, approximately one'month later. Tiralango filed a summons and

complaint against Balfry on March 21, 1995. He served Balfry on April 11,

1995. The circuit court granted Balfry summary judgment on the ground the

action was barred by the three year statute of limitations in S.C. Code Ann. §

15-3-530(5)(Supp. 1996).1 The Court of Appeals reversed, finding the statute

of limitations tolled as Balfry had departed from and remained outside the state

of South Carolina for more than one year. Tiralango v. Balfry, 329 S.C. 228,

495 S.E.2d 234 (Ct. App. 1997).2 We granted certiorari to assess the impact of

our recent decision in Meyer v. Paschal, 330 S.C. 175, 498 S.E.2d 635 (1998).





DISCUSSION





Subsequent to the Court of Appeals' opinion in this matter, this Court

decided Meyer v. Paschal in which we held the tolling provisions of section 15-3

30 are inapplicable when a nonresident defendant is amenable to personal

service and may be brought within the jurisdiction of South Carolina courts.3

It is undisputed that Balfry was at all times amenable to personal service and

subject to thejurisdiction of South Carolina courts. Accordingly, under a literal




1 Section 15-3-530(5) provides a three year statute of limitations for "any

injury to the person or rights of another, not arising on contract and not

enumerated by law..."





2 S.C. Code § 15-3-30 provides:

If when a cause of action shall accrue against any person he shall

be out of the State, such action may be commenced within the

terms in this chapter respectively limited after the return of such

person into this State. And if, after such cause of action shall have

accrued, such person shall depart from and reside out of this State

or remain continuously absent therefrom for the space of one year

or more, the time of his absence shall not be deemed or taken as

any part of the time limited for the commencement of such action.





3 Meyer specifically overruled prior case law which had held the tolling

statute applied to absent defendants notwithstanding their amenability to

personal service.

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TIRALANGO v. BALFRY





interpretation of Meyer, it is patent the tolling statute would not apply such

that Tiralango's suit is barred. However, Meyers was expressly limited, as

follows:



Our holding is limited to situations similar to the instant case in

which the name and location of the defendant is known to the

plaintiff. The period of limitations may be tolled when that

information is not known to the plaintiff. Whether the

plaintiff had such knowledge could conceivably be a question of

fact.



330 S.C. at 184, 498 S.E.2d at 639 (emphasis supplied). It is undisputed that

Tiralango did not learn Balfry's address until approximately one month after

the accident. Accordingly, the question is whether the statute was tolled during

this one month period.4





Resolution of this issue turns upon construction of the phrase "known to

the plaintiff" in Meyer. If construed as a requirement of actual, subjective

knowledge, then the statute is tolled for the period during which Tiralango did

not "know" Balfry's address. If construed as an objective knowledge

requirement, i.e., "could have/should have known," then the statute is not tolled

as Balfry's address was at all times available. We find the latter construction

more consistent with our opinion in Meyer, and with the reasoning in other

jurisdictions.5





In Meyer, we addressed the rationale for holding the statute is not tolled

when the defendant is amenable to service, stating, "No construe the tolling

statute in the manner urged by the plaintiff (i.e., as being tolled until the

plaintiff decides to serve the defendant) would allow suits to be postponed




4 If tolled, the statute would not have begun to run until May 5, 1992,

such that Tiralango's complaint,. served on Balfry on April 11, 1995, would fall

within the three year statute.





5 Recently, in Alday v. Tecphy Div. Firminy , 10 F.Supp. 2d 562 (D.S.C.

1998), the federal district court interpreted Meyer as establishing an objective

knowledge requirement stating the limitations period is tolled if the defendant's

name and location is not known to the plaintiff, "and is not able to be

discovered by reasonable methods before the statute of limitations runs."

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TIRALANGO v. BALFRY





indefinitely, for no good purpose, and to be brought in some cases at the

virtually unlimited pleasure of the plaintiff." 330 S.C. at 183, 498 S.E.2d at

639. In the present case, were we to apply an actual knowledge requirement,

Tiralango would have been free to wait six months or one year (or longer) to

obtain the report and the statute would nonetheless be tolled, notwithstanding

the address was at all times available to him. Such a result is patently

inconsistent with our holding in Meyer and, accordingly, we decline to so hold.





Moreover, authority in other jurisdictions accords with our view. In

Slayden v. Sixta, 813 P.2d 393 (Kan. 1991), the issue was whether the

defendant's absence from the state tolled the statute of limitations where the

plaintiff did not, for a time, know the defendant's whereabouts. Slayden held

the only reasonable and logical construction of "whether the defendant's

whereabouts were known" was whether the plaintiff actually knew the

defendant's whereabouts or whether the plaintiff could, through the exercise of

reasonable diligence, have known the defendant's whereabouts. See also

Sullivan v. Trustmark Nat'l Bank, 653 So.2d 930 (Miss. 1995)(statute of

limitations not tolled if plaintiff knew, or should have known, of defendant's

whereabouts); Johnson v. Stuenzi, 696 A.2d 237 (Pa. Super. 1997)(applying

"reasonable diligence" standard to plaintiffs efforts to locate defendant); Doyle

v. Shubs, 717 F.Supp. 946, 951, nA (D.Mass. 1989)(implying that courts should

adopt standard that defendant's name or location "could not reasonably have

been known" during the limitations period).





In accordance with the above authority, we construe the language in

Meyer as requiring an objective test of knowledge, i.e., the statute is tolled

when the plaintiff did not, and could not reasonably have known the

whereabouts of the defendant. Under the facts of this case, the defendant's

whereabouts were at all times discoverable such that Tiralango could

reasonably have known Balfry's address from the date of the accident.

Accordingly, the statute was not tolled, and the Court of Appeals' opinion is





REVERSED.6



FINNEY, C. J. , TOAL, MOORE, and BURNETT, JJ. , concur.








6 We note also that Tiralango timely filed this action in March, 1995. He simply

failed to serve Balfry until April 11, 1995, notwithstanding he had obtained her address in

May, 1992. Accordingly, it is patent that the one month delay in obtaining Balfry's address

in no way contributed to his untimely service. Accord Doyle v. Shubs, 717 F.Supp. 946 (D.

Mass. 1989)(purpose of tolling provisions inapplicable where plaintiff s lack of knowledge

of defendant's address did not cause delay in filing lawsuit).

p.9