THE STATE OF SOUTH CAROLINA
In The Supreme Court
Joseph S. Tiralango, Respondent,
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
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.
Tiralango, a New York resident, and Balfry, a Quebec resident, were
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
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
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
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
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
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
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
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."
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
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
FINNEY, C. J. , TOAL, MOORE, and BURNETT, JJ. , concur.
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).