$2.5 Million Personal Injury Suit Dismissed Because Lawyer Underpaid the Filing Fee by $2.00

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Virginia lawyer representing an assistant band director in a personal injury suit mailed the complaint and a check for filing fees of $344.00 on September 2, 2010 to the circuit court. This amount was determined by a staff assistant asking a nearby clerk’s office and not that of the circuit court where the case was to be filed.

The clerk of the circuit court received the complaint and fees on September 3, 2010. On September 9, 2010, the day the statute of limitations expired, the clerk informed the lawyer that the check for filing was $2.00 short – it did not cover a library assessment. The lawyer immediately mailed a check for $2.00 with the result that the clerk, after receipt of the check, filed the action on September 13, 2010. The lawyer dealt with the resulting statute of limitations issue by taking a voluntary nonsuit and refiled the action. The defendant promptly moved that the case be dismissed because the initial complaint was not filed within the two-year statute of limitations. The Circuit Court judge agreed and dismissed the case. The Virginia Supreme Court affirmed the lower court’s dismissal. (Landini v. Bil-Jax, Inc., Supreme Court of Virginia, Record No. 140591, Circuit Court No. CL12-062 (unpub. order) (1/30/2015))

You cannot make this stuff up. Why would a staff assistant not check with the clerk of the circuit court that had jurisdiction over the case? Why would a filing fee deficiency be mailed on the day that the statute of limitations expired? Was it assumed that the clerk filed the action without the entire filing fee being paid? What kind of docket control were they using? Why wait until seven days before the statute of limitations expired
to file the suit? What were they thinking? How will the lawyer defend the $2.5 million malpractice claim that he is sure to receive? Will he argue, “Aw shucks the claim was only worth about $25,000?” Good luck with that.

We hope that this could never happen to you – but it just might. Lawyers Mutual has had claims based on court clerks allegedly failing to file mailed complaints, mortgages, and other legal documents either in a timely manner or not at all. In one case the clerk’s office was in the process of moving when the mailed document should have been received. In other cases the clerk’s position was that the mail was never received. The result is that deadlines and statutes of limitations are missed and unrecorded mortgages go unnoticed until it is too late to avoid a claim. Without irrefutable evidence that the document and filing fee were timely received by the clerk, a lawyer has little defense against a malpractice claim. Ultimately, it is always the lawyer’s responsibility to determine that mailed documents are received and filed or recorded in time.

HOW DOES YOUR FIRM RISK MANAGE OUTGOING MAIL?

  • Do you take it for granted that your mail gets to the proper destination and on time if you mailed it with a reasonable amount of time to get there?
  • Do you assume that the court clerk received and deposited your mailed filing fee and promptly filed the legal document accompanying the fee?
  • Do you avoid using overnight, express delivery companies with Internet tracking service to cut down on costs?
  • Are you familiar with the postage rates, weight limitations on mail, and restrictions on where mail can be dropped?
  • Do you docket time sensitive mailings for follow-up to confirm arrival at the correct destination?
  • Do you have an office procedure to confirm that mailed filing fees have been deposited in a timely manner?
  • Do you use “Address Service Requested” on First-Class Mail®?
  • Do you get the temporary addresses of clients who go south for the winter as part of your routine client intake procedures?

RECOMMENDED OUTGOING MAIL RISK MANAGEMENT PROCEDURES

Every practice should have tight control procedures for outgoing mail:

  • For all outgoing mail double check addressing to make sure that a complete address is used, including any suite numbers and nine-digit zip codes.
  • Use the post office’s Special Address Services (Ancillary Service Endorsements) for outgoing first class mail to give the Postal Service specific instructions for how to handle your mail if it is undeliverable as addressed. These services include:
    • Address Service Requested
    • Return Service Requested;
    • Change Service Requested;
    • Forwarding Service Requested; and
    • Electronic Service Requested.
  • If you are representing clients who go south for the winter, make sure you get their temporary address as part of your client intake procedures.
  • All outgoing mail that contains time sensitive documents must be sent in a way to track the date of its arrival at the correct destination. This can be done any number of ways, the most obvious being via registered U.S. mail return receipt requested with signature of the receiving person.
  • Overnight mail and express delivery services provide both Internet tracking and recipient signature service. Many firms, if not most, use these services for time-sensitive documents.
  • Consult the USPS guides for mailing to be sure you are in compliance with current mailing regulations. Start with USPS Business Mail 101. It is readily available on the Internet – just Google.

None of this is rocket science. It is much harder than that. It requires constant attention to detail by docketing time sensitive outgoing mail and e-mail for follow-up to assure that they were received in a timely manner by the right addressee and, when a filing fee is involved, that the fee was deposited.

If the fee is not deposited in the regular course of business, you are on notice that something is amiss requiring prompt action. Never, never send by regular mail or e-mail any time sensitive document when there is not enough time to get the irrefutable confirmation that it was received on time. Following this rule could save you from a malpractice claim and a major out-of-pocket expense.

 


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Disclaimer: The contents of this Web site are intended for general information purposes only and should not be construed as legal advice or legal opinion on any specific facts or circumstances. It is not the intent of this Web site to establish an attorney’s standard of due care for a particular situation. Rather, it is our intent to advise our policyholders to act in a manner which may be well above the standard of due care in order to avoid claims having merit, as well as those without merit. In the event any statement on the Web site differs from a statement in an issued policy the policy will control.

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