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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Kuk v. Nalley (09/07/2007) sp-6160
Notice: This opinion is subject to correction before
publication in the Pacific Reporter. Readers are
requested to bring errors to the attention of the Clerk
of the Appellate Courts, 303 K Street, Anchorage,
Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
| THOMAS KUK and SABINA KUK, | ) |
| ) Supreme Court No. S- 12024 | |
| Appellants, | ) |
| ) Superior Court No. | |
| v. | ) 3AN-04-12890 CI |
| ) | |
| JANET NALLEY, | ) O P I N I O N |
| ) | |
| Appellee. | ) No. 6160 September 7, 2007 |
| ) | |
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, Peter A. Michalski, Judge.
Appearances: William Dennie Cook, Law Office
of William D. Cook, PC, Eagle River, and
Jahna Lindemuth, Dorsey & Whitney, LLP,
Anchorage, for Appellants. Kimberlee A.
Colbo, Hughes Bauman Pfiffner Gorski &
Seedorf, LLC, Anchorage, for Appellee.
Before: Fabe, Chief Justice, Matthews,
Eastaugh, Bryner, and Carpeneti, Justices.
MATTHEWS, Justice.
A statute provides that when a defendant leaves the
state her absence is not part of a limitations period. Does this
statute apply when she is temporarily out of the state but
amenable to service of process? We answer no because our case
law establishes that the absence contemplated by the statute must
obstruct or prevent a suit. This interpretation serves the
policy of limitations statutes by providing a definite time and
avoiding needless uncertainty.
Facts and Proceedings
On November 17, 2002, motor vehicles driven by Janet
Nalley and Thomas Kuk collided. Thomas, his wife, Sabina, and
their children, Ryan and Laura, were injured in the accident.
More than two years later, on November 30, 2004, Thomas and
Sabina sued Nalley for personal injuries and property damage
arising out of the accident. In the same suit Thomas also sued on
behalf of the Kuks children.
Nalley moved for summary judgment, arguing that the two-
year statute of limitations applicable to tort claims for
personal injury and property damage, AS 09.10.070, barred the
claims of the adult Kuks.1 The Kuks opposed the motion and filed
a cross-motion on the same issue, arguing that under AS 09.10.130
the statute of limitations should be extended for the period of
time that Nalley was absent from the state during the limitations
period.
The superior court granted Nalleys motion for summary
judgment and denied the cross-motion of the Kuks.2 A final
judgment was then entered in accordance with the courts summary
judgment order in favor of Nalley and against Thomas and Sabina
Kuk. From this judgment the Kuks have appealed.
Introductory Discussion
As this case is presented, there are no genuine issues
of material fact. We therefore review the superior courts grant
of summary judgment nondeferentially in order to determine
whether Nalley was entitled to judgment as a matter of law.3
The Kuks point to the fact that Nalley was outside of
Alaska for health and surgery reasons from November 2003 to June
2004. They argue that this period of absence should be excluded
from the two-year statute of limitations under the absent-from-
the state tolling provision contained in AS 09.10.130.4 Nalley
argues that our decision in Byrne v. Ogle5 held that the absence
tolling provision in AS 09.10.130 does not apply where
substituted service is available under AS 09.05.020(a)6 and AS
09.05.0407 and that substituted service on her was available
during her absence.
The Kuks seek to distinguish Byrne. They argue that
Byrne held that the absence tolling provision does not apply only
when statutory substituted service under AS 09.05.020 and .040 is
available. They contend that substituted service was not
available because even though Nalley had temporarily departed
from the state for purposes of the tolling statute she had not
moved from the state within the meaning of the substituted-
service statute. Therefore Nalley was not a nonresident as
required under section .020 and she was not a person who has
moved to another state after the accident as required under
section .040. They argue that since Byrne does not apply, the
case is controlled by the plain language of the second sentence
of AS 09.10.130: If a person departs from the state . . . the
time of absence . . . is not part of the time limited for the
commencement of the action. Therefore the time of Nalleys
absence should not be counted in computing the two-year
limitations period. The Kuks also contend that the tolling
provision does not require a showing that a plaintiff is actually
unable to effect service on an absent defendant, but instead that
[t]he statute correctly presumes that a seven-month absence
seriously decreases the Kuks ability to prove their cause of
action and effectuate commencement of an action against Ms.
Nalley.
We do not find it necessary to resolve the question
whether the moved to language of AS 09.05.040 applies to any
departure from the state. Instead, we affirm on the basis that
the reasoning in Byrne is not limited to the substituted-service
statute, but also applies to extraterritorial service under the
Civil Rules authorized by the long-arm statute, AS 09.05.015.
Our reasons follow.
Byrne v. Ogle
Alaska Statute 09.10.130 has not been changed since it
was first adopted by the state legislature in 1962. Similar
provisions existed in the statutes governing the Territory of
Alaska and the pre-territorial District of Alaska.8 Numerous
other states also have statutes with similar tolling provisions.9
This court addressed the continuing relevance of the
absence tolling statute in Byrne. The defendant, Ogle, was in an
automobile accident in Alaska.10 The United States Army rotated
him out of the state before the two-year statute of limitations
ran, but he remained amenable to service under the statutory
substituted-service provisions of AS 09.05.020 and AS 09.05.040.11
We held that the tolling statute and the substituted-service
statute must be examined together in order to determine the true
meaning of the tolling statute:
It is conceded that if the tolling
statute is examined in isolation, while
ignoring all other considerations, it might
be read as indicating that where a defendant
departs from the state after a cause of
action accrues, the time he is absent should
not be considered as part of the period of
limitation. However, in order to give a
statute its true meaning, it must be examined
in conjunction with other statutes bearing
upon the problem being considered.[12]
We noted that under the substituted-service statute the
plaintiff was able to serve the defendant notwithstanding his
absence from the state.13 Because the defendants absence was thus
irrelevant to the ability of the plaintiff to commence and
maintain a suit, we concluded that applying the tolling statute
was neither necessary nor justifiable:
The right of the plaintiff to commence
his action and obtain a judgment, being
complete and unaffected by the defendants
absence, it is not necessary or justifiable
to extend AS 09.10.130 to cover this
situation in which the appellee was
personally absent, but at all times subject
to substituted service upon the Commissioner
of Revenue. To ignore this fact and give a
broader application to the tolling statute
would lead to undesirable results
inconsistent with the purposes of statutes
dealing with periods of limitation.
. . . .
To apply the tolling statute to a
situation where the defendant is at all times
amenable to service is repugnant to the
general purposes of statutes of limitations.
The policy of the law is to allow a
reasonable but definitely limited time for
the bringing of an action after which the
matter is put to rest.[14]
We also emphasized the purpose of the tolling statute:
It is the apparent purpose of the
tolling statute to prevent a plaintiffs being
deprived of an opportunity to prove his cause
of action by the defendant absenting himself
from the jurisdiction for the duration of the
period of limitation. The tolling statute
preserves the plaintiffs cause of action
until service has been made available and
practical, by the defendants presence in the
state, for a time equal to the total period
of limitation.
The essence of the difficulty sought to
be remedied by the suspensory statute is not
mere personal absence of the defendant, but
such unavailability as will defeat the power
of a plaintiff to effectuate commencement of
his action.[15]
As this language suggests, the premise of the tolling statute is
that a defendants personal absence from the jurisdiction makes
service on the defendant either impossible or difficult and this
makes commencement or maintenance of a suit against the defendant
likewise impossible or difficult.
This premise was once valid. But the shift in personal
jurisdiction jurisprudence effectuated by International Shoe Co.
v. Washington16 and its progeny have made the premise of the
statute no longer valid in most cases. International Shoe
signaled the end of the requirement that a person must be within
the territorial jurisdiction of a court in order for that court
to have jurisdiction.17 Instead, the International Shoe Court
held that due process only requires that a defendant have certain
minimum contacts with [a state] such that the maintenance of the
suit does not offend traditional notions of fair play and
substantial justice.18
International Shoe prompted the promulgation of
numerous statutes and rules authorizing suits against out-of-
state defendants and facilitating service of process on them.
One example of such a statute is the substituted-service statute
under which service was made in Byrne. This was enacted in 1960.19
Another statute reflecting the International Shoe changes is
Alaskas long-arm statute, codified as AS 09.05.015. This was
enacted in 1968.20 It sets out circumstances, including types of
contacts with Alaska, under which personal jurisdiction may be
exercised over defendants. The long-arm statute defines personal
jurisdiction comprehensively, though not exclusively.21 It
includes cases where both resident and nonresident defendants are
alleged to have acted in a manner giving rise to liability in the
state. Personal service under the statute is to be accomplished
according to the rules of civil procedure.22
At the time of the enactment of the long-arm statute,
Rule 4 of the Alaska Civil Rules provided that a person outside
the state could be served in the same manner as if service were
made within the state, except that service shall be made by a
sheriff, constable, bailiff, peace officer or other officer
having like authority in the jurisdiction where service is made.23
Rule 4 also provided for service by publication upon a showing of
diligent inquiry as to an absent partys whereabouts.24 By 1977 a
person out of the state could be served by registered or
certified mail with return receipt requested.25
Although the service of process in Byrne was
accomplished under the substituted-service provisions of AS
09.05.020 and .040, the same analysis employed in Byrne applies
where personal jurisdiction is available under the long-arm
statute. Just as the substituted-service statute had to be
considered in conjunction with the tolling statute when
interpreting the latter so, logically, must other statutes that
have the effect of authorizing service on absent defendants. As
we have seen, AS 09.05.015, by authorizing service according to
the Civil Rules, authorizes service on absent defendants. It
applies to this case because AS 09.05.015(a)(3) provides for
jurisdiction in an action claiming injury to person and property
in the state arising out of an act or omission in the state by a
defendant.26 Based on the long-arm statute and the means of
service available under our Civil Rules, it is evident that
Nalley was at all times amenable to service of process. We
conclude therefore that the reasoning of the Byrne decision
applies to this case.
Precedent in Other Jurisdictions
Our holding is supported by decisions of courts of a
number of other jurisdictions. A good recent example is Shin v.
McLaughlin.27 In Shin the Hawaii Supreme Court held that Hawaiis
similar absence-from-the-state tolling provision did not apply to
a motorist who left the state after an automobile accident.28
Under Hawaiis long-arm statute motor vehicle operators who are no
longer in the state are amenable to extra-territorial service
either personally or by certified or registered mail.29 The
Hawaii court reasoned that the term out of state in the tolling
statute should be construed to refer only to defendants who
cannot be served with process.30 In reaching this conclusion the
court reviewed the decisions of other jurisdictions, including
Alaska:
In Meyer v. Paschal, 498 S.E.2d 635
(S.C. 1998), the South Carolina Supreme Court
construed a similar tolling statute . . . .
The Meyer court explained that South
Carolina enacted this tolling provision in
1870 in order to protect its residents from
defendants who were not amenable to personal
service of process because the defendants
were out of the State. Id. at 637 (footnote
omitted). The court further stated that
[b]ecause the tolling statute was enacted
during a period of history when the ability
to obtain personal jurisdiction over an
out-of-state defendant was severely limited
by the due process clause, this statute
served the important purpose of preventing
the statute of limitations from expiring on
valid claims when the defendant was
out-of-state and personal jurisdiction was
not possible. Id. See also Byrne v. Ogle,
488 P.2d 716, 717-18 (Alaska 1971) (The
tolling statute preserves the plaintiffs
cause of action until service has been made
available and practical, by the defendants
presence in the state, for a time equal to
the total period of limitation.); Selby v.
Karman, 521 P.2d 609 (Ariz. 1974) (stating
that the clear purpose of the absentee
tolling statutes is to prevent a defendant
from defeating plaintiffs claim by absenting
himself from the state); Lipe v. Javelin Tire
Co. Inc., 536 P.2d 291, 294 (Idaho 1975)
(believing the purpose of the tolling statute
is to prevent the running of the statute of
limitations during the time that a defendant
was unavailable for service of process
because he was absent from the state).
Consistent with these purposes, other
courts have interpreted the term absent or
out of the state to mean a defendant who is
beyond personal jurisdiction and process of
the court and not simply a defendant who is
physically absent from the state. Meyer, 498
S.E.2d at 639; Byrne, 488 P.2d at 718
(construing a similar statute as not mere
personal absence of the defendant, but such
unavailability as will defeat the power of a
plaintiff to effectuate commencement of his
action); Phillips v. Anchor Hocking Glass
Corp., 413 P.2d 732 (Ariz. 1966) (without the
state or absent means that defendant cannot
be served with process), overruled on other
grounds by Northern Propane Gas Co. v. Kipps,
622 P.2d 469 (Ariz. 1981); Peters v. Tuell
Dairy Co., 35 So. 2d 344 (Ala. 1948) (absence
from the state means that the state does not
have jurisdiction over the person).[31]
There is also contrary authority that applies similar
tolling provisions to defendants despite the fact that they may
be served extraterritorially.32 We have expressed our
disagreement with this line of cases in Byrne33 and see no reason
to change our view.
Policy Considerations
We believe that the plain language approach advocated
by the appellants would introduce a needless level of uncertainty
into the application of statutes of limitations. Before a court
could decide whether a statute has run, there would have to be a
preliminary adjudication as to the number of days that a
defendant has been outside the state.
Even this is an oversimplification because under Bendix
Autolite Corp. v. Midwesco Enterprises, Inc.34 and its progeny
absences for purposes of interstate commerce may not
constitutionally stop the running of a period of limitations. In
Bendix, an out-of-state corporation was subject to jurisdiction
in Ohio under the states long-arm statute.35 If the tolling
statute applied, the corporation would be denied the defense of
the statute of limitations,36 whereas Ohio companies could rely on
the defense. The Court held that this discriminatory treatment
amounted to an unreasonable burden on commerce.37 While Bendix
dealt specifically with the case of a non-resident corporation
doing business in the state, courts following Bendix have held
that absent-from-the-state tolling provisions may not
constitutionally be applied to individuals engaged in interstate
commerce.38 Bendix thus complicates the application of absence
tolling statutes to residents such as Nalley who leave the state
because the reasons for their absence must be inquired into. The
tolling statute may not exclude days of absence for reasons
related to interstate commerce, even if it does exclude days
where the defendant is absent for other reasons.39 A further
complicating factor is that there is considerable uncertainty as
to what constitutes the pursuit of interstate commerce for
purposes of the Bendix test.40
The uncertainty engendered by the statutory
construction advocated by appellants would be antithetical to the
purpose of statutes of limitations. As we stated in Byrne: The
policy of the law is to allow a reasonable but definitely limited
time for the bringing of an action after which the matter is put
to rest.41 Here, as in Byrne, to apply the tolling statute to a
situation where the defendant is at all times amenable to service
is repugnant to the[se] general purposes.42
Conclusion
For the above reasons we hold that when a person is out
of the state and is at all times amenable to service of process,
the absence provisions of AS 09.10.130 do not apply.43 The
judgment is AFFIRMED.
_______________________________
1 Nalley did not seek summary judgment against the claims
of the children. Under the minor tolling provisions of AS
09.10.140 the childrens claims are not time-barred.
2 The childrens claims were dismissed without prejudice
by stipulation.
3 Zok v. Collins, 18 P.3d 39, 41 (Alaska 2001).
4 AS 09.10.130 provides:
When the cause of action accrues against
a person who is out of the state or concealed
in the state, the action may be commenced
within the periods provided in this chapter
after that person returns to the state or
when the concealment ceases. If a person
departs from the state or conceals ones
person after the cause of action accrues, the
time of absence or concealment is not part of
the time limited for the commencement of the
action.
(Emphasis added.)
5 488 P.2d 716 (Alaska 1971).
6 AS 09.05.020 provides:
(a) The operation of a motor vehicle by
a nonresident, or owned by a nonresident and
operated by the express or implied consent of
the owner, in the state is considered
equivalent to an appointment of the
commissioner of administration by the
nonresident as the nonresidents attorney.
The summons may be served on the commissioner
in an action against the nonresident growing
out of an accident or collision in which the
vehicle is involved while being so operated.
This operation is considered a signification
of the nonresidents agreement that a summons
against the nonresident which is so served
has the same legal force as if served on the
nonresident personally in the state.
(b) Service of the summons is made by
leaving a copy of it with the commissioner of
administration or the designee of the
commissioner. The commissioner or a designee
shall keep a record of each such process and
the day and hour of service. This service is
sufficient service on the nonresident.
(c) The plaintiff or the plaintiffs
attorney shall send a notice of the service
and a copy of the summons to the defendant by
registered mail within 10 days after the date
of service.
(d) The plaintiff or the plaintiffs
attorney shall make an affidavit showing that
service of the notice and summons on the
defendant has been made by registered mail as
provided in (c) of this section. The affiant
shall attach to the affidavit a copy of the
summons and notice so served and the registry
receipt of the defendant. The affiant shall
file the affidavit and attached papers with
the court having jurisdiction of the cause.
(e) The court in which the action is
pending may order an extension of time
necessary to give the defendant reasonable
opportunity to defend the action.
7 AS 09.05.040 provides:
A resident who has operated a motor
vehicle, or has owned a motor vehicle
operated with the express or implied consent
of the owner that has been involved in an
accident or collision on a public highway,
and who has moved to another state after the
accident or collision shall be treated as a
nonresident for service of process as
provided under AS 09.05.020 and 09.05.030.
(Emphasis added.)
8 Provisions tolling the statute of limitations during
the defendants absence from the jurisdiction originated in
England. Alaska Credit Bureau of Juneau v. Fenner, 80 F. Supp.
7, 8 (D. Alaska Terr. 1948) (citing chap. 16, 19 of the Statute
of Anne). The United States Congress adopted the statute for
Alaska in 1900. 15, pt. IV, Carters Annotated Alaska Code
(1900). It was based on a similar Oregon statute that was
enacted in 1862. Id. This statute remained essentially
unchanged until statehood. 847 Compiled Laws Annotated (CLA)
(1913); 3365 CLA (1933); 55-2-14 Alaska Compiled Laws Annotated
(1949).
9 E.g., Cal. Civ. Proc. Code 351; Idaho Code Ann. 5-
229; Me. Rev. Stat. Ann. tit. 14, 866; Miss. Code Ann. 15-1-63;
Mo. Ann. Stat. 516.200; Neb. Rev. Stat. 25-214; Ohio Rev. Code
Ann. 2305.15(A); Or. Rev. Stat. Ann. 12.150; S.C. Code Ann. 15-
3-30; S.D. Codified Laws 15-2-20; Tenn. Code Ann. 28-1-111;
Tex. Civ. Prac. & Rem. Code Ann. 16.063; Utah Code Ann. 78-12-
35; Wash. Rev. Code Ann. 4.16.180; Wyo. Stat. Ann. 1-3-116.
10 488 P.2d at 716.
11 Id. at 716-17.
12 Id. at 717.
13 Id. at 718.
14 Id.
15 Id. at 717-18 (citations omitted).
16 326 U.S. 310 (1945).
17 Id. at 316.
18 Id. (quotations omitted). To quote more fully:
Historically the jurisdiction of courts
to render judgment in personam is grounded on
their de facto power over the defendants
person. Hence his presence within the
territorial jurisdiction of court was
prerequisite to its rendition of a judgment
personally binding him. Pennoyer v. Neff, 95
U.S. 714, 733, 24 L. Ed. 565. But now that
the capias ad respondendum has given way to
personal service of summons or other form of
notice, due process requires only that in
order to subject a defendant to a judgment in
personam, if he be not present within the
territory of the forum, he have certain
minimum contacts with it such that the
maintenance of the suit does not offend
traditional notions of fair play and
substantial justice.
Id. (quotations omitted).
19 Ch. 16, 1, SLA 1960.
20 Ch. 87, 1, SLA 1968.
21 The intended reach of the long-arm statute is as broad
as is permitted under the due process clause of the Fourteenth
Amendment. Alaska Telecom, Inc. v. Schafer, 888 P.2d 1296, 1299
(Alaska 1995).
22 AS 09.05.015(a).
23 This language was originally in Civil Rule 4(e)(2).
Alaska Supreme Court Order No. 49 (January 1, 1963). In 1979 the
language was moved to Civil Rule 4(d)(12), where it still
resides. Alaska Supreme Court Order No. 357 (June 30, 1979).
24 The original provision discussing service by
publication was promulgated as Rule 4(e)(3) in 1963. Alaska
Supreme Court Order No. 49 (January 1, 1963). It was moved to
its current location, Rule 4(e)(2), in 1979. Alaska Supreme
Court Order No. 357 (June 30, 1979). Service by publication
requires, in addition to newspaper publication, that the summons
and complaint be sent to the last known address of the absent
party by registered or certified mail unless a showing is made
that the last known address of the absent party is unknown and
cannot be ascertained after inquiry. Alaska R. Civ. P. 4(e)(2).
25 At the time of the enactment of the long-arm statute
Rule 4(h) provided for service of process by registered or
certified mail with return receipt requested, but this applied
only to mail within the state. Alaska Supreme Court Order No. 90
(July 24, 1967). Rule 4(h) was amended in 1977 to allow for
service by registered or certified mail anywhere in the United
States. Alaska Supreme Court Order No. 266 (March 31, 1977).
26 AS 09.05.015(a)(3) provides:
A court of this state having
jurisdiction over the subject matter has
jurisdiction over a person served in an
action according to the rules of civil
procedure
. . .
(3) in an action claiming injury to
person or property in or out of this state
arising out of an act or omission in this
state by the defendant[.]
27 967 P.2d 1059 (Haw. 1998).
28 Id. at 1060, 1061.
29 Id. at 1064.
30 Id.
31 Id. at 1062-63.
32 E.g., Dew v. Appleberry, 591 P.2d 509 (Cal. 1979);
Couts v. Rose, 90 N.E.2d 139 (Ohio 1950); Vaughn v. Deitz, 430
S.W.2d 487 (Texas 1968); Olseth v. Larsen, 158 P.3d 532 (Utah
2007).
33 488 P.2d at 717:
Appellant asserts that to permit the
availability of a statutory agent for service
of process to avoid the suspension of the
statute of limitations is to impliedly amend
the tolling statute by the addition of a
limitation not expressed. Some of the cases
adopting the minority viewpoint have so held.
We cannot agree with their analysis.
Id. (citations omitted).
34 486 U.S. 888 (1988).
35 Id. at 894.
36 Id. at 891-92.
37 Id. at 891.
38 See, e.g., Rademeyer v. Farris, 284 F.3d 833, 838-39
(8th Cir. 2002) (holding that a Missouri tolling statute was
unconstitutional under the commerce clause in the situation where
a resident defendant moved out of state); Abramson v. Brownstein,
897 F.2d 389, 392 (9th Cir. 1990) (holding that Californias
tolling statute could not constitutionally be applied to a non-
resident entering into a sales transaction with a resident since
the non-resident was engaged in interstate commerce); Tesar v.
Hallas, 738 F. Supp. 240, 241-42 (N.D. Ohio 1990) (holding that
the Ohio tolling statute could not be constitutionally applied to
a person who had moved out of Ohio to take a job in Pennsylvania
since interstate commerce is affected when persons move between
states in the course of or in search for employment); McFadden v.
Battifora, 2004 WL 103353, at *4 (Cal. App. 2004) (holding that
because Dr. Medeiros, a former California resident, moved to
Texas to take a new job in 1998, thereby engaging in interstate
commerce the tolling statute could not be applied under Bendix).
39 An illustrative case is Filet Menu, Inc. v. Cheng, 84
Cal. Rptr. 2d 384 (Cal. App. 1999). Cheng was a California
resident sued for breach of contract in California more than five
years after the date of the apparent breach. Id. at 385. The
plaintiff claimed that Cheng had been out of the state for a
sufficient time after the breach of contract to prevent the four-
year statute of limitations from having run. Id. at 386. The
court recognized that the tolling provision could not
constitutionally be applied to any travel by Cheng related to
interstate commerce and that a remand was necessary to determine
the specific reasons for Chengs out-of-state travel. Id. at 388-
89.
40 This question was much litigated in the intermediate
courts of Ohio. Compare Permanent Gen. Ins. Cos. v. Dressler,
720 N.E.2d 959, 961 (Ohio App. 1998) (Dressler, a resident of
Ohio, amenable to service, left the state to vacation. Surely
the act of vacationing out of state implicates interstate
commerce. An entire industry has grown around the simple act of
leaving ones home for a short respite in another state or another
country.) with Lovejoy v. Macek, 702 N.E.2d 457, 462 (Ohio App.
1997) (holding six-to-nine-day absence from Ohio for vacation
purposes does not rise to the level of an act engaging in
interstate commerce, mooting question of whether absence to
attend college is interstate commerce). The Ohio Supreme Court
in Johnson v. Rhodes resolved the question in Ohio as to whether
applying the tolling statute to a resident who takes a short out-
of-state vacation constitutes an impermissible burden on
commerce. 733 N.E.2d 1132, 1134 (Ohio 2000). The court answered
this question in the negative, ruling that the tolling statute
may constitutionally be applied to a resident who temporarily
leaves the state of Ohio for non-business reasons. Id. at 1134.
But many questions remain as to what conduct falls within Bendix,
both in Ohio and elsewhere, in jurisdictions that have adopted a
plain language approach to their tolling statutes. In the
present case, it is unclear whether Nalley was engaged in
interstate commerce when she was outside the State of Alaska for
health and surgery reasons.
41 488 P.2d at 718.
42 Id.
43 As this case does not involve the concealment of a
defendant, this opinion should not be construed to apply to cases
of concealment under AS 09.10.130.
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