Can the Tolling of Statutes of Limitations Based on the Defendant's Absence from the State Ever Be Consistent with the Commerce Clause?

By Heiser, Walter W. | Missouri Law Review, Spring 2011 | Go to article overview
Save to active project

Can the Tolling of Statutes of Limitations Based on the Defendant's Absence from the State Ever Be Consistent with the Commerce Clause?


Heiser, Walter W., Missouri Law Review


Most states have legislation that tolls applicable statutes of limitations during the time a defendant is absent from the state. (1) In 1988, the United States Supreme Court held in Bendix Autolite Corp. v. Midwesco Enterprises, Inc. that such tolling provisions violated the Commerce Clause when applied to nonresident corporations. (2) Since then, courts in several jurisdictions have considered the constitutionality of these statutes with respect to other categories of defendants. In some states, courts narrowly defined the statutory term "absence" to exclude individual defendants who, although physically absent from the state, are amenable to service of process under the laws of the forum state. (3) This limiting construction largely eliminates tolling applications that may run afoul of the Commerce Clause. (4)

However, courts in other jurisdictions have construed the tolling provisions in their state statutes to apply whenever the defendant is physically absent from the forum state, regardless of whether that defendant is still amenable to service of process. (5) These courts also conclude that such tolling provisions violate the Commerce Clause when applied to nonresident individuals, (6) as well as to resident individuals whose absence from the forum state was for business reasons. (7) Under the reasoning employed by these courts, the applicable statutes of limitations will not be tolled during the time the defendant temporarily leaves the forum state for a non-business purpose, such as for a vacation in another state or country. (8)

This Article discusses the propriety of these Commerce Clause decisions with respect to individual defendants. More precisely, this Article examines two questions. The first is whether the Supreme Court's holding in Bendix was properly extended to individual resident and nonresident defendants. The other, and more difficult, issue concerns the proper application of the Commerce Clause to state statutes that toll the statute of limitations during the time a resident defendant is temporarily absent from the state. The Article focuses on whether such provisions violate the Commerce Clause regardless of the reason for the absence.

Part I of this Article examines the nature and operation of state statutes that toll statutes of limitations during a defendant's absence, as well as the reasons why many states enacted such legislation. Part II discusses dormant Commerce Clause jurisprudence generally, and its application to tolling provisions based on absence from the state. This Part summarizes both the Supreme Court's decision in Bendix, which invalidated certain absence-based tolling provisions when applied to nonresident corporations, and state and lower federal court decisions that extended Bendix to individual defendants. (9) Part III addresses the two issues identified in the previous paragraph and concludes that the extension of Bendix to individual defendants is clearly appropriate. This Part also explains why absence-based tolling violates the Commerce Clause when applied to a resident defendant who temporarily leaves the state, regardless of the purpose of the out-of-state travel. Finally, this Article concludes that absence-based tolling survives Commerce Clause scrutiny only in very limited circumstances. (10)

I. TOLLING BASED ON ABSENCE FROM THE STATE

As mentioned previously, most states have legislation that tolls statutes of limitations during a defendant's absence from the state. (11) For example, the California statute, which is typical of many of these tolling provisions, provides:

   If, when the cause of action accrues against a person, he is out of
   the state, the action may be commenced within the term herein
   limited, after his return to the state, and if, after the cause of
   action accrues, he departs from the state, the time of his absence
   is not part of the time limited for the commencement of the
   action. 

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
Loading One moment ...
Project items
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

Cited article

Can the Tolling of Statutes of Limitations Based on the Defendant's Absence from the State Ever Be Consistent with the Commerce Clause?
Settings

Settings

Typeface
Text size Smaller Larger
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

While we understand printed pages are helpful to our users, this limitation is necessary to help protect our publishers' copyrighted material and prevent its unlawful distribution. We are sorry for any inconvenience.
Full screen

matching results for page

Cited passage

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

Cited passage

Welcome to the new Questia Reader

The Questia Reader has been updated to provide you with an even better online reading experience.  It is now 100% Responsive, which means you can read our books and articles on any sized device you wish.  All of your favorite tools like notes, highlights, and citations are still here, but the way you select text has been updated to be easier to use, especially on touchscreen devices.  Here's how:

1. Click or tap the first word you want to select.
2. Click or tap the last word you want to select.

OK, got it!

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.

Are you sure you want to delete this highlight?