"Neither a Borrower Nor Lender Be" Was Only Half Right for Defense Attorneys
Shakespeare was not a defense attorney. No, not because he had Dick the Butcher exclaim in Henry VI, "The first thing we do, let's kill all the lawyers." It's more because he wrote in Hamlet, "Neither a borrower nor lender be."
For the product liability defense attorney, following the Bard's advice on borrowing can ignore a possible get-out-of-jail-free card for your client in the form of a statute of limitations summary judgment. In walks, stage right, the oft-overlooked understudy of a limitations defense -- the "Borrowing Statute."
Contrary to the sound of its title, a "Borrowing Statute" is not to punish unscrupulous lenders or deadbeat borrowers. Borrowing Statutes, in the states that have enacted them, literally direct trial courts to "borrow" the statute of limitations of another state in certain circumstances. Most states have some form of a borrowing statute, but beware, there are 15 separate species of statutes.
We recently obtained summary judgment for a product-liability client in a Florida state-court case, just affirmed on appeal, using the Florida Borrowing Statute. In that case, a Tennessee citizen sued a Georgia citizen and another Tennessee citizen for an on-the-job injury occurring in Florida, alleging the Georgia-manufactured product used in Florida was defective.
In that case, Florida had a four-year statute of limitations, while plaintiff's home state of Tennessee had only a one-year statute. He missed the one-year statute while filing within Florida's four-year statute.
In stepped the borrowing statute of Florida, however. The key issue under the statute was where did the claim "arise?" In making this determination, Florida courts employ the traditional choice-of-law test of the Restatement, looking for the state with the "most significant relationship." The trial court found it was Tennessee, although the accident happened in Florida. The court of appeals affirmed.
As mentioned, there are many different variations of borrowing statutes, each with different triggers and requirements.
Some state borrowing statutes, for instance, only apply if the plaintiff is a foreign citizen, seeking to apply the forum state's longer statute of limitations when either his home state's or another applicable state's statute of limitations has expired on his claim. This effectuates the anti-forum-shopping intent of borrowing statutes. California, Delaware, Hawaii, Idaho, Kansas, Michigan, Mississippi, Montana, Nevada, New York, North Carolina, Rhode Island, and Utah follow the plaintiff's residency. If the plaintiff is a forum resident, the statute does not apply.
Other states look to the defendant's residency. In Alabama, Arizona, Indiana, Iowa, Massachusetts, Nebraska, and Tennessee, the defendant's residency is the determinative factor. If the defendant is a forum resident, the borrowing statute does not apply.
Still other states (Alaska, Illinois, Maine, Oregon, and Washington) require that both plaintiff and defendant are not forum residents. Conversely, Florida, Kentucky, Missouri, Oklahoma, Pennsylvania, and Wisconsin do not look to the residency of the parties in applying the borrowing statute.
So, when looking at a case, the defense attorney sometimes should a borrower be.