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STATE OF MINNESOTA IN COURT OF APPEALS A09-1044

Lonnie S. Singelman, Appellant, vs. St. Francis Medical Center, Respondent.

Filed January 19, 2010 Affirmed Bjorkman, Judge

Wilkin County District Court File No. 84-CV-08-601 Keith L. Miller, Miller, Norman & Associates, Ltd., Moorhead, Minnesota (for appellant) Steven R. Schwegman, James S. McAlpine, Quinlivan & Hughes, P.A., St. Cloud, Minnesota (for respondent)

Considered and decided by Toussaint, Chief Judge; Klaphake, Judge; and Bjorkman, Judge. SYLLABUS Minn. R. Civ. P. 3.01(c), which provides that an action is commenced when the summons is "delivered to the sheriff in the county where the defendant resides," requires personal delivery to the sheriff. Transmittal by mail to the sheriff does not commence an action.

OPINION BJORKMAN, Judge Appellant Lonnie Singelman challenges the summary-judgment dismissal of her medical-malpractice action, arguing that she served the summons on respondent within the time allowed by the applicable statute of limitations. Because we conclude that Singelman did not commence the action within the limitations period, we affirm. FACTS Singelman alleges that respondent St. Francis Medical Center (SFMC) committed medical malpractice on July 12, 2004. While preparing Singelman for surgery, a nurse stuck an IV needle into Singelman's left arm, hitting a nerve. The impact with the nerve immediately caused Singelman's hand to "claw up" and has caused her ongoing pain and weakness. A SFMC representative initially told Singelman that SFMC would cover the costs of medication related to her nerve injury. But SFMC did not pay any of her medical expenses and eventually told Singelman that it was interested in arbitrating her potential claim. At that point, Singelman retained an attorney. Singelman's attorney

communicated first with SFMC's claims representative, and then with SFMC's attorney, exchanging information and discussing arbitration. October 16, 2007. Discussions broke down around

There was no further communication between the parties until

Singelman attempted to commence this action. On July 7, 2008, Singelman's attorney sent a copy of the summons and complaint via first class mail to the Wilkin County Sheriff, requesting service upon SFMC. 2

According to its internal records, the Wilkin County Sheriff's Office did not receive counsel's letter and the pleadings until July 17, 2008, five days after the statute of limitations had expired.1 The secretary responsible for civil process at the sheriff's office stamped the received date on the cover letter. She submitted an affidavit stating that she remembers receiving the letter because she thought it was unusual to have a request for service on a date that had already passed. The secretary contacted Singelman's attorney, who asked that the sheriff serve the papers anyway. The sheriff's office served the summons and complaint on SFMC the same day. SFMC moved for summary judgment on the ground that the statute of limitations had expired by the time the process was "delivered" to the sheriff. Singelman argued that delivery occurred when her attorney mailed the summons and complaint to the sheriff 's office. Citing her own receipt of a contemporaneously mailed copy of the summons and complaint on or before July 9, 2008, Singelman also challenged the factual basis for SFMC's assertion that the sheriff did not receive the pleadings until July 17, 2008. The district court granted summary judgment to SFMC. This appeal follows. ISSUES I. Is the delivery requirement of Minn. R. Civ. P. 3.01(c) satisfied by mailing the summons and complaint to the sheriff? Is SFMC equitably estopped from asserting the statute-of-limitations defense?

II.

1

The statute of limitations on a medical malpractice action is 4 years. Minn. Stat.

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