I Tolled You I Had More Time!: the Future of Tolling Looks Bright for Crime Victims, as the Georgia Court of Appeals Establishes New Meaning of O.c.g.a. § 9-3-99

• Citation: Vol. 68 No. 2
• Publication year: 2017

I Tolled You I Had More Time!: The Future of Tolling Looks Bright for Crime Victims, as the Georgia Court of Appeals Establishes New Meaning of O.C.G.A. § 9-3-99

Gretchen O. Connick

[Page 557]

Casenote

I Tolled You I Had More Time!: The Future of Tolling Looks Bright for Crime Victims, as the Georgia Court of Appeals Establishes New Meaning of O.C.G.A. § 9-3-99^*

I. Introduction

Gone are the days of crime victims rushing to the courthouse steps to beat the statute of limitations' ticking clock. Now, crime victims have the ability to make time stand still in regard to their claims arising out of the crime committed against them. Tolling statutes extend the time for plaintiffs to sue by temporarily suspending the running of the statute of limitations.¹ One such statute, section 9-3-99 of the Official Code of Georgia Annotated (O.C.G.A.),² tolls the statute of limitations for claims brought by plaintiffs who were the victim of a crime giving rise to their action.³

[Page 558]

The statute was enacted in 2005 and was consistently interpreted only to apply to lawsuits brought by crime victims against their perpetrators.⁴

However, the Georgia Court of Appeals, in the 2016 case Harrison v. McAfee,⁵ relied on the statute's plain meaning and interpreted it in a new way, applying it to lawsuits against persons other than perpetrators of the crime as long as the claim arose out of the facts and circumstances of the crime.⁶ This drastically altered the scope of the statute, and overruled the court's prior decisions.⁷ As the court recognized in its opinion, the broader interpretation of the statute will significantly impact the future of personal injury actions brought by crime victims.⁸

II. Factual Background

John Harrison's attempt to bring a lawsuit against Dargan McAfee and the Twisted Shamrock (Shamrock) met some difficulty when the trial court rejected his argument that § 9-3-99 tolled the statute of limitations for his personal injury claims.⁹ Section 9-3-99 tolls the statute of limitations until the prosecution of the person who committed the crime against the plaintiff terminates or finalizes, as long as the period does not exceed six years.¹⁰

What Harrison had probably assumed would be a pleasant night was significantly altered when he was shot in the arm while patronizing the Shamrock, a restaurant and bar located in Macon, Georgia. On the night of June 16, 2011, a group of masked men burst into the Shamrock in an apparent attempt to rob the bar. At least one of the men was armed. Harrison was shot in the arm as a result of the alleged robbery attempt. Unfortunately, as of July 7, 2016—the day the court filed its opinion on this case—Harrison's shooter had yet to be found.¹¹

On August 14, 2013, Harrison filed a premises liability lawsuit against McAfee, the owner and operator of the Shamrock at the time of the shooting. Harrison alleged that McAfee had been negligent in maintaining the bar and that his negligence allowed the incident to take place. McAfee raised the defense that Harrison's complaint was time-barred by the two-

[Page 559]

year statute of limitations for personal injury cases, set forth in O.C.G.A. § 9-3-33,¹² and filed a motion to dismiss on this ground.¹³ However, McAfee withdrew his motion to dismiss after Harrison amended his complaint to allege that the limitation period had been tolled under § 9-3-99.¹⁴ Relying on the fact that Harrison filed his complaint over two years after the incident took place, the defendants moved for summary judgment on the ground that Harrison's claims were barred by the statute of limitations for personal injury cases.¹⁵ In response, Harrison argued that, due to his status as the victim of a crime, his complaint was timely filed under § 9-3-99. Harrison further argued the court's prior holdings that § 9-3-99 only applied to claims brought against alleged perpetrators were erroneous. Despite his efforts, the trial court rejected Harrison's arguments and granted summary judgment in favor of the defendants.¹⁶

On appeal, Harrison continued to argue the applicability of § 9-3-99 to his case.¹⁷ Again asserting the court's prior holdings surrounding § 9-3-99 were wrongly decided, he urged the court to overrule its precedent. The Georgia Court of Appeals gave great consideration to its prior holdings in which it interpreted § 9-3-99 as being limited in scope only to claims brought by victims against criminal defendants. After reviewing the history of its decisions surrounding this issue and reexamining the plain language of the statute, the court agreed with Harrison that its prior interpretation of the statute was erroneous.¹⁸ The court held that § 9-3-99 applied to Harrison's claims against McAfee and the Shamrock, and the statute of limitations was successfully tolled.¹⁹

[Page 560]

III. Legal Background

A. What Does O.C.G.A. § 9-3-99 Say?

Title nine, Chapter three of the O.C.G.A., entitled, "Limitations of Actions," lays out the statutes pertaining to the statute of limitations in different tort actions.²⁰ Article five of this chapter is dedicated to the various tolling provisions in civil actions. Included in these provisions is § 9-3-99, which reads as follows:

The running of the period of limitations with respect to any cause of action in tort that may be brought by the victim of an alleged crime which arises out of the facts and circumstances relating to the commission of such alleged crime committed in this state shall be tolled from the date of the commission of the alleged crime or the act giving rise to such action in tort until the prosecution of such crime or act has become final or otherwise terminated, provided that such time does not exceed six years, except as otherwise provided in Code Section 9-3-33.1.²¹

B. Creation of O.C.G.A. § 9-3-99

Section 9-3-99 was one of many statutes enacted as part of the Crime Victims Restitution Act of 2005 (CVRA).²² This Act was introduced at a time when there appeared to be frustration among prosecutors and victims' advocates in relation to the criminal justice system's treatment of victims.²³ In response to the apparent frustration, former Georgia Governor Sonny Perdue introduced the CVRA, thus acknowledging the need for reform within the criminal justice system concerning victims' rights and remedies.²⁴ Regarding § 9-3-99, the preamble of the CVRA indicates that it provides a way for crime victims to bring civil actions "against the persons accused of such crimes."²⁵ Although this language is not written into the body of the statute, courts have relied on it when discussing the

[Page 561]

legislative intent behind § 9-3-99.²⁶ As a result, this language has played an important role in guiding courts' decisions concerning the allegedly ambiguous language of the statute.²⁷ That is, until Harrison v. McAfee.²⁸

C. The Georgia Supreme Court and the Plain Language Discussion

Since the enactment of § 9-3-99, Georgia courts have been faced with two questions regarding its scope. The first relates to the extent of crimes covered by the statute.²⁹ The second concerns the kind of defendant against whom the statute could be used to toll the limitations period.³⁰ The Georgia Supreme Court resolved the first question in the 2009 case, Beneke v. Parker,³¹ in which it relied on the statute's plain language in reaching its decision.³² In doing so, the court interpreted the language in question broadly so as not to intrude on its plain meaning.³³

In Beneke, the Georgia Supreme Court did not agree with the holding of the court of appeals that only offenses that satisfy the definition of "crime" as laid out in O.C.G.A. § 16-2-1³⁴ are applicable to § 9-3-99.³⁵ According to § 16-2-1, in order to commit a crime, one must act with intent or criminal negligence.³⁶ However, the court of appeals determined that because some misdemeanors, such as traffic violations, do not have a mens rea requirement, they are not covered by the tolling statute.³⁷ Acknowledging this argument, the supreme court looked to the language in O.C.G.A. § 16-1-3 for a definition of "misdemeanor."³⁸ Pointing to the language stating a misdemeanor is "any crime other than a felony," the court

[Page 562]

concluded that "crime," as mentioned in § 9-3-99, encompassed misdemeanors and felonies alike.³⁹ It reached its decision by concluding that, had the Georgia General Assembly intended to limit the scope of § 9-3-99 to only serious crimes, it would have done so.⁴⁰

D. The Big Question: What Kind of Defendant Does This Statute Apply To?

In the 2007 case DeKalb Medical Center, Inc. v. Hawkins,⁴¹ the Georgia Court of Appeals, for the first time, described § 9-3-99 as tolling the statute of limitations only while the "prosecution of the defendant is pending."⁴² Though this was mentioned only in dicta in Hawkins, this would soon become a widely discussed issue surrounding § 9-3-99.⁴³ The court of appeals quickly set the precedent that the statute only applied to defendants who were somehow linked to the criminal activity giving rise to the civil action.⁴⁴ However, in setting this precedent, the court was inconsistent in the language it used to describe the specific kind of defendant and situation in which the tolling statute applied.⁴⁵

In Valades v. Uslu,⁴⁶ decided in 2009, the Georgia Court of Appeals, Second Division, held that § 9-3-99 did not apply to the plaintiffs' claims

[Page 563]

against Fulton County Police Officer, Hakan Uslu.⁴⁷ In that case, a traffic stop deteriorated into a heated argument between the Valadeses and Uslu. The Valadeses alleged that during the argument, Uslu yelled at them and was aggressive toward Mrs. Valades.⁴⁸ As a result, they filed a complaint against Uslu for, among other things, false arrest, assault and battery, and intentional infliction of emotional distress.⁴⁹ The court reasoned that because the civil defendant was not being prosecuted for any crime surrounding the incident that led to the cause of action, the tolling statute was not...