Bond v. Serano

PER CURIAM:

The Superior Court dismissed appellant’s suit for personal injury against the District of Columbia and other defendants on the ground that the three-year statute of limitations governing such actions had expired. Appellant concedes that the statute of limitations had run, but urges this court to apply principles of equitable tolling and to hold that his earlier suit against the District of Columbia filed in the United States District Court for the District of Columbia, alleging the same cause of action, but which had been dismissed by that court for lack of subject matter jurisdiction, tolled the statute of limitations for purposes of his Superior Court suit. Concluding that we are bound by a previous decision of this court rejecting a functionally identical argument, Namerdy v. Generalcar, 217 A.2d 109, 113 (D.C.1966), we uphold the order of the trial court dismissing appellant’s complaint.

I.

On August 27, 1983, appellant was involved in a collision with two other vehicles including a District of Columbia police car. Appellant gave the required notice to the District of Columbia (the District) of the circumstances of his negligence claim, D.C. Code §§ 1-1213 & 12-309 (1987), and on August 14, 1986, filed a complaint alleging *48negligence in the United States District Court for the District of Columbia against the District and three individuals. On September 8, 1986, the District moved to dismiss the complaint for lack of diversity jurisdiction over the District of Columbia in federal court. On September 12, 1986, appellant filed an identical complaint in the Superior Court of the District of Columbia. The District moved to dismiss this suit on the ground that the District of Columbia’s three-year statute of limitations for negligence actions, D.C.Code § 12-301(8) (1989), had expired on August 27, 1986.

On November 26, 1986, the trial court denied the District’s motion to dismiss the Superior Court suit without prejudice to its renewal after the pending federal action was decided. On January 6,1987, the United States District Court ruled that pendent party jurisdiction over the District of Columbia in a diversity action was proper; the court relied primarily on a decision of the district court in an unrelated case and a prior panel decision of the United States Court of Appeals for the District of Columbia Circuit which had been vacated en banc.1 On June 5,1987, however, the United States Court of Appeals for the District of Columbia Circuit, in an unrelated case, held that federal courts may not exercise pendent party jurisdiction over the District of Columbia in a diversity action.2 In response to this holding, the district court sua sponte dismissed the District of Columbia as a defendant in appellant’s federal suit, leaving the suit intact against the individual defendants. On July 2,1987, the District renewed its motion to dismiss the instant case in Superior Court on the basis of the statute of limitations.

The trial court rejected appellant’s claim that the pendency of the federal action tolled the statute of limitations. The court noted that this case involved an ordinary negligence claim arising from an automobile accident on August 27, 1983, to which the three-year statute of limitations applied. It further pointed out that appellant did not claim that he had been unable to discover his cause of action earlier (i.e., invoke the so-called “discovery rule”) or contend that the District of Columbia had been responsible for his failure to heed the statute of limitations in his Superior Court suit. Rather, appellant argued that his federal suit embodying an identical claim should toll the statute of limitations with regard to his Superior Court action. Citing decisions of several other courts, appellant urged the court to apply a species of equitable tolling and rule that the statute of limitations is tolled by the pendency of a suit filed in another court in the reasonable (though in hindsight mistaken) belief that jurisdiction was proper. The trial court found this position to have “considerable intuitive appeal” because District of Columbia law favors resolving claims on the merits, and because the District government had conceded that the primary purposes underlying statutes of limitations — protection against stale claims, surprise, and loss of evidence — were not immediately implicated in this case. The court concluded, nevertheless, that “basic considerations ... militate against creating a new exception to the statute of limitations.”

First, the court determined that the statute of limitations “is inherently an arbitrary strict rule providing a definite termination of the time period within which an injured party may file suit,” and should not entail “a case-by-case review of the equities of individual situations.” Second, the court pointed out that this court “has not created a general equitable exception to the statute of limitations” and, in those situations where it has allowed exceptions, “has emphasized that the exceptions are narrow.” Finally, the court concluded that “creating *49a new exception to the statute of limitations, and balancing the competing claims of individual equity against the need for a definite rule, are matters of policy which are more appropriately decided by the legislature.” The trial court therefore dismissed the complaint with prejudice.

II.

Appellant, relying primarily on decisions of other courts,3 urges this court to hold that equitable tolling may relieve a plaintiff of the consequences of failure to comply with the statute of limitations where: (a) the original suit filed, although dismissed without prejudice, gave timely notice to the defendant of the plaintiffs cause of action; (b) there was no prejudice to the defendant in gathering evidence to defend against the second claim; and (c) plaintiff acted reasonably and in good faith in prosecuting the first action and diligently in filing the second.

In Namerdy v. Generalcar, supra, however, this court rejected a contention not materially distinguishable from appellant’s. The plaintiff there sued the defendant in the courts of New York for failure to pay four installments of a debt under an agreement that had been negotiated by the parties in New York. Personal jurisdiction could not be obtained in New York, however, and when the defendant was traced to Washington, D.C., plaintiff brought suit there in the court of General Sessions on the debt. As to the first installment, the defendant raised the defense that it was barred by the three-year statute of limitations because the installment was due on April 17, 1961, and suit had not been filed in the District of Columbia until April 23, 1964.

This court began by noting the settled rule that where a debt is payable in independent installments, the right of action accrues upon each installment as it matures. The court then dealt with plaintiffs claim that, although the statute of limitations had strictly run on the installment in question, the statute “was tolled by the timely filing of a suit in New York and by general principles of estoppel and fundamental justice.” Id. at 113 (emphasis added). Apparently deeming no further discussion of the point to be necessary, the court dismissed this argument by observing that “[tjhere is no basis for finding that filing suit in another jurisdiction tolls the statute of limitations here.... Recovery on the first installment was thus barred by limitations.” Id.

Appellant seeks to distinguish Namerdy on the ground that the court rejected a claim of “equitable estoppel,” not the theory of equitable tolling appellant advances. This argument is unpersuasive. The court in Namerdy was asked specifically to hold that the filing of suit in New York on the same cause of action tolled the statute of limitations for purposes of the District of Columbia suit. The court found “no basis” for such a principle and held that the statute of limitations barred suit on the installment in issue. Appellant further notes that Namerdy has not been cited by this court again on the statute of limitations issue, and that may be true. But the decision has not been overruled. As a division of this court, we are bound by it. M.A.P. v. Ryan, 285 A.2d 310 (D.C.1971). Two members of the division, however, believe that the issue may be worthy of en banc consideration.

Accordingly, the order of the trial court dismissing the complaint is

Affirmed.

. The unreported district court decision was Biscoe v. Arlington County, C.A. No. 80-0766 (D.D.C. Jan. 22, 1981) (Greene, J.). The appellate court decision was Rieser v. District of Columbia, 183 U.S.App.D.C. 375, 563 F.2d 462 (1977), vacated, reinstated in part, 188 U.S.App. D.C. 384, 580 F.2d 647 (1977) (en banc). In reinstating the judgment on other grounds, the United States Court of Appeals for the District of Columbia Circuit did not reach the issue of pendent party jurisdiction over the District of Columbia in a diversity suit.

. Long v. District of Columbia, 261 U.S.App.D.C. 1, 820 F.2d 409 (1987).

. E.g., Hosogai v. Kadota, 145 Ariz. 227, 700 P.2d 1327 (1985); Collier v. City of Pasadena, 142 Cal.App.3d 917, 191 Cal.Rptr. 681 (1983); Galligan v. Westfield Centre Serv., Inc., 82 N.J. 188, 412 A.2d 122 (1980).