A Bad Time In South Dakota

A person who was one of four guests that suffered from carbon monoxide poisoning while staying at the Star Brite Inn in Yankton, South Dakota retained an attorney shortly after the incident. The attorney gave the client a draft summons and complaint but never filed it. The client assumed that all was proceeding in a normal fashion. It was not. Rather, the attorney was in the process of getting suspended and disbarred.

The client made some efforts to contact the attorney to no avail. Eventually, she learned of the attorney’s disbarment from counsel for one of the other victims. By then, the three year statute of limitations had run.

The South Dakota Supreme Court held that the doctrine of equitable tolling did not operate to save the claim. Even though the client may have been lulled by the (never filed) draft complaint, she did not act with sufficient diligence in the two years after the attorney had dropped out of sight. The client had made a conscious decision to do nothing in the face of the attorney’s apparent abandonment of his office and practice. (Mike Frisch)