Oregon Case Law Update: Servicemember’s Wrongful-Death Claim Tolled While on Active Duty
From the Desk of Joshua P. Hayward: Federal law tolls the statute of limitations for military members while they are on active duty. But does this law extend to members of the military who bring a claim as a personal representative instead of bringing their own claim? Read on to find out.
Claims Pointer: In this case arising out of a death caused by an exploding tire, the Oregon Court of Appeals held that the statute of limitations on a wrongful-death claim was tolled when the servicemember, acting as personal representative, sued within three years of being discharged from active duty but beyond three years since the date of injury. This case defines the scope of the protection servicemembers receive under the federal tolling statute.
Wilcox v. Les Schwab Tire Centers of Oregon, Inc., 293 Or App 452 (August 22, 2018).
In March 2010, Plaintiff Scott Wilcox (“Plaintiff”) and his wife were active duty servicemembers in the United States Air Force. While on leave, the two were traveling in Plaintiff’s vehicle and noticed that the vehicle was shaking. After stopping, the couple was advised to replace a tire which had originally been purchased from Les Schwab Tire Centers of America, Inc. (“Les Schwab”). After replacing the problem tire, Plaintiff’s wife placed the tire on her lap while they drove in search of a mechanic. The tire exploded in Plaintiff’s wife’s lap, causing serious injuries which eventually led to her death in April of 2010. Plaintiff was discharged from active duty in September 2011.
In September 2014, Plaintiff, acting as personal representative, brought a wrongful-death lawsuit against Les Schwab claiming products liability and negligence. In Oregon, the statute of limitations on wrongful-death claims is three years. See ORS 30.020(1), ORS 30.905(4). Because more than three years had elapsed since his wife’s death in 2010, Les Schwab filed a motion with the...