This week marks the end of COVID tolling’s application to personal injury claims subject to a two-year statute of limitation for incidents that occurred on or after July 14, 2020. Avoid malpractice by reviewing the evolution of the Supreme Court of Georgia’s Judicial Emergency Order to assist your evaluation of personal injury cases where the injury occurred before, during, or after the expiration of the Order.

On March 14, 2020, the Supreme Court of Georgia issued an Order tolling all deadlines imposed by statutes, rules, regulations, or court orders pursuant to O.C.G.A. § 38-3-61. See, Order Declaring Statewide Judicial Emergency (March 14, 2020) (hereinafter “the Judicial Emergency Order”).  This became known as “COVID tolling” among the Georgia legal community.  The Judicial Emergency Order was subsequently extended fifteen times as the COVID-19 pandemic significantly restricted Georgia courts and the entire legal community’s ability to practice law.

The June 12, 2020 extension Order is perhaps the most important as it contained critical information for Georgia courts and lawyers by reimposing statutes of limitation applicable to civil, criminal, and administrative actions, effective July 14, 2020. See, Third Order Extending Declaration of Statewide Judicial Emergency (June 12, 2020).  The Order provides that “cases that were pending before the March 14[, 2020] Order…will have the same amount of time to file or act after July 14[, 2020] that they had as of March 14[, 2020].” See, Id. at (II)(A)(3). Cases arising on or after July 14, 2020 do not receive the benefit of COVID tolling.  Consequently, personal injuries which occurred on July 14, 2020 or later are subject to their normal statute of limitations.

In the two years following the Judicial Emergency Order, Georgia courts were faced with many litigants seeking clarification on the tolling provision and its applicability to pending cases.  The Georgia Court of Appeals read the plain language of the Judicial Emergency Order in Beauparlant v. Aiken, 362 Ga. App. 341 (2022) when it rejected the argument that a plaintiff waived the benefit of COVID tolling by choosing to file a lawsuit within the tolling period.

Georgia state courts also weighed in.  For example, the State Court of Gwinnett County rejected the argument that COVID-19 tolling is exclusive to statutes of limitation that expired during the tolling period. See, Lidard v. Bombardier Transportation Holdings USA, et al., Civil Action No. 21C-8378-4, Order Denying Defendants’ Motions to Dismiss (Feb. 4, 2022).

For those cases to which COVID tolling applies, i.e. cases where filing deadlines were suspended by the Judicial Emergency Order, a Certificate of Timeliness must be submitted with the affected filing. See, Supreme Court Rule 11.1.  This certificate is not counted against any applicable page limitations, and shall include:

1. the date the filing was due before the deadline was suspended by the Judicial Emergency Order (without regard to any non-emergency-related extensions previously granted, and without the application of O.C.G.A. § 1-3-1(d)(3) where the filing deadline would have fallen on a weekend or legal holiday);
2. the number of days that remained before the date specified in number 1 above as of the suspension of the deadline; and
3. that the filing being submitted is timely because it is being filed within the number of days calculated from the date the suspension lifted, subject to O.C.G.A. § 1-3-1(d)(3).

See, Supreme Court Rule 11.1 (a)-(c).  Additionally, Supreme Court Rule 11.1 requires a copy of the Order affecting the filing to be attached to the Certificate of Timeliness.  The Supreme Court offered a sample form attached here.

As you can see, COVID-19 still has a profound impact on the way Georgia lawyers continue to practice today by adding an additional layer to one of the most important tasks of our job: calculating the client’s statute of limitations.  As a result, Georgia lawyers have a duty to take additional steps to determine whether a client’s case is subject to COVID tolling and, if necessary, ensure complaints are timely filed with a Certificate of Timeliness attached based on that determination.  We hope these considerations of the impact of the Judicial Emergency Order, developing case law, and information on new filing requirements can assist in making this critical determination.