Determining when the statute of limitations expires is not always easy. This is particularly true in medical malpractice cases which are governed by two Code of Civil Procedure sections: 340.5 and 364. Additionally, other statutes may act to toll the applicable statute of limitations. One such statute is Insurance Code section 11583. It provides that the applicable statute of limitations is tolled when advance or partial payment is made to an injured and unrepresented person without notifying him of the applicable limitations period.
The Court of Appeals held in Coastal Surgical Institute v. Blevins, a case of first impression, that the tolling provisions of Insurance Code section 11583 apply to the one-year limitations period for medical malpractice actions found in Code of Civil Procedure section 340.5, but not the three-year maximum.
Section 11583 provides in relevant part: “No advance payment or partial payment of damages made by any person, or made by his insurer . . . , as an accommodation to an injured person . . . shall be construed as an admission of liability by the person claimed against, or of that person’s or the insurer’s recognition of such liability . . . . Any person, including any insurer, who makes such an advance or partial payment, shall at the time of beginning payment, notify the recipient thereof in writing of the statute of limitations applicable to the cause of action which such recipient may bring against such person as a result of such injury . . . . Failure to provide such written notice shall operate to toll any such applicable statute of limitations or time limitations from the time of such advance or partial payment until such written notice is actually given. That notification shall not be required if the recipient is represented by an attorney.”
Held: Belton v. Bowers Ambulance Service is controlling. The tolling provisions of section 11583 apply to the one-year limitations period of section 340.5.
In Belton the California Supreme Court held that a similar provision for prisoners tolled the same statute of limitations. The court reasoned: “No tolling provision outside of MICRA can extend the three-year maximum time period that section 340.5 establishes. … Here, however, [the plaintiff] filed his complaint after the one-year statutory period expired but well within the statute’s three-year maximum. Thus, he is not attempting to extend that maximum. Rather, he seeks statutory tolling of the one-year period.” The “‘listing of specified tolling rules in section 340.5 implicitly excludes others, but these limits apply only to tolling rules which extend the total limitations period beyond three years: “In no event shall the time for commencement of legal action exceed three years unless tolled for any of the following . . . .” . . . The plain language of section 340.5 does not purport to limit tolling which extends the total limitations period less than or up to three years.'” [Citations omitted.]
Like section 340.5, section 364 also does not purport to limit tolling that extends the one-year limitations period. Accordingly, the tolling provisions of section 11583 can extend the one-year period of section 340.5 up to a maximum of three years from the date of injury.
An insurer who makes an advance or partial payment to an injured and unrepresented person is not required to advise when the statute of limitations would expire. It is sufficient if the insurer informs such a person, in writing, of the one-year and three-year periods as provided in section 340.5.
Mr. Daymude consults with clients and accepts cases involving statute of limitations issues, including personal injury cases. He refers medical malpractice cases to qualified counsel. For other types of cases accepted, please scroll the Home and My Practice pages. If you are seeking a consultation or representation, call Michael Daymude at 818-971-9409.