Jen's Tip of the Month
"Among the men who fought on Iwo Jima, uncommon valor was a common virtue."
- Fleet Admiral Chester W. Nimitz, US Navy, 16 March 1945.
This weekend we celebrate Memorial Day. This is not just a day for a good barbecue but more importantly, a time to honor those who have died in battle for our country.
Our Court system also honors those serving in the armed forces through a federal law called the Servicemembers Civil Relief Act (sometimes referred to as the Soldiers and Sailors Relief Act). Under this law, our federal government recognizes that sometimes a person serving in the military is not able to fully participate in legal proceedings and this inability should not adversely impact their rights.
A person is considered in military service if they are on active duty or are a member of the National Guard under call to serve for more than 30 days. The usual statute of limitations may be extended for a service member who wants to file a lawsuit. In fact, under the Servicemen's Civil Relief Act, the time in which a plaintiff is in the military service can't be used in calculating the statute of limitations period.
A defendant who is in military service is similarly protected and can't be defaulted from a lawsuit. When a plaintiff files a motion for default judgment against any defendant, the plaintiff must submit an affidavit stating that the defendant is NOT in military service. If the plaintiff can't determine whether or not the defendant is in military service, the Court can require the plaintiff to file a bond for any amount; generally this amount is related to any damages the defendant may suffer as a result of the default.
Once a defendant that is in military service is served with a lawsuit, the defendant can seek a stay of the case at any point in the litigation. To obtain a stay, the defendant has to file an application with the Court that should include: 1) information about how the military duty prevents the serviceman's participation in the litigation; and 2) written documentation from the service member's commanding officer stating that leave is not available. The Court should then grant a stay for no shorter than 90 days. Additional requests for stay can be made, if the defendant's military service continues to impede his/her participation in the litigation.
Finally, it is worth noting that if the service member is just one of multiple defendants, the Court may allow the case to proceed against the other defendants. This would leave the missing service member as an "empty chair" at arbitration or trial, but no judgment could be assessed against the service member.
If you have a case in which your insured is in military service, please honor them this weekend, and give me a call if you have questions about how their military service may impact the progression of the case. Jen 602-234-7805
Jennifer Erickson is a partner with Jennings Haug Cunningham where she continues to practice in the area of insurance defense and coverage. Her client focus is on the education of claims adjusters. Over the years, Jen has designed dozens of training programs and is the founder and lead instructor of Claims University, which provides fun and interactive classes for adjusters at all levels.
If you would like to discuss training needs for your organization, please contact Jen directly at 602-234-7805.
Partner, Jennings Haug Cunningham