Dayton Crash Case Clears Up Ohio's Saving Statute: Dismissed Twice, Still Timely

Published August 20, 2024 · Ohio Supreme Court

Lawsuits do not always go smoothly at the start. The at-fault driver moves without leaving a forwarding address, certified mail comes back unclaimed, or a case gets dismissed on a procedural point before anyone has looked at the evidence. When that happens close to the two-year deadline, injured people worry their claim is gone for good.

On July 24, 2024, the Supreme Court of Ohio answered an important question about that situation in a case that started with a red-light crash right here in Montgomery County. The decision is McCullough v. Bennett, Slip Opinion No. 2024-Ohio-2783.

The crash and three complaints

According to the Court's opinion, Ryan McCullough and Joseph Bennett were in a collision in April 2017. Mr. McCullough alleged that Mr. Bennett ran a red light. Ohio's statute of limitations for bodily-injury claims, R.C. 2305.10(A), gave him two years to sue, until April 27, 2019.

He filed three times:

1. January 2018. The first complaint was dismissed without prejudice the next month after service by mail was returned unclaimed.
2. June 2018. The second complaint was filed well within the two years. Service was eventually completed by publication. When Mr. Bennett did not answer, the court dismissed this case without prejudice in November 2018.
3. September 2019. The third complaint was filed after the two-year period had run, but within one year of the second dismissal. This time service was completed.

Mr. Bennett argued that the third complaint was too late. The trial court agreed and dismissed it. The Second District Court of Appeals in Dayton reversed, and the Supreme Court affirmed the Second District.

What the saving statute says

Ohio's saving statute, R.C. 2305.19(A), gives a plaintiff a second chance when a case ends for a reason that has nothing to do with whether the claim is valid. In the statute's words, if the plaintiff "fails otherwise than upon the merits," the plaintiff may commence a new action within one year after that failure, or within the original limitations period, whichever is later.

A dismissal "without prejudice" is a classic example of a failure otherwise than on the merits. The court has not decided who was at fault or what the injuries are worth. It has simply closed that particular file.

The "one-use" rule, rejected

Mr. Bennett's main argument was that the saving statute can be used only once. That idea came from a single sentence in a 1997 Supreme Court case, Thomas v. Freeman, which said in passing that the statute "can be used only once to refile a case." Many lower courts had repeated that line over the years.

Writing for the majority, Justice DeWine explained that the sentence in Thomas was dicta, meaning a side comment that was not necessary to decide that case, and that it addressed an older version of the statute. The General Assembly rewrote the saving statute in 2004, and the current version is unambiguous. Applying its plain language, the Court held that Mr. McCullough's second complaint failed otherwise than on the merits in November 2018 and his third complaint was filed within one year after that failure. Under the statute's terms, the case was timely.

The Court also rejected Mr. Bennett's two other arguments: that the saving statute could not apply because the earlier dismissals happened before the two years ran out, and that a court rule about completing service within one year defeated the claim. All seven justices agreed with the result, although two concurred only in the judgment and did not sign on to the majority's reasoning.

What the decision does not do

This is a pro-plaintiff ruling, but it is not a license to delay. The limits still matter:

• The one-year clock is real. The new case must be filed within one year after the dismissal, or within the original limitations period if that is later. Miss that window and the saving statute will not help.
• Courts can stop abuse. The Court pointed out that under Civil Rule 41(A)(1), a second voluntary dismissal by the plaintiff operates as "an adjudication on the merits," and a trial court can make a court-ordered dismissal "with prejudice" to prevent endless refiling.
• The case must actually be commenced. Under Civil Rule 3(A), an action is commenced only if service is obtained within one year of filing.
• The facts here were specific. The Court emphasized that this case involved a single refiling after the limitations period expired, not an attempt to extend the deadline indefinitely.

And winning on the saving statute only means Mr. McCullough gets his day in court. The question of who ran the red light still has to be decided.

Why this matters for Dayton crash victims

Service problems are common in car-crash cases. Drivers move, use old addresses on their licenses, or simply refuse to sign for certified mail. Our guide chapter on deadlines and the timeline of an Ohio injury case explains why two years is shorter than it sounds, and this case shows the kind of procedural trouble that can eat into that time.

The better approach is to avoid the problem altogether. When a lawyer is involved early, there is time to confirm the at-fault driver's current address, identify the insurer, and use every available method of service well before the deadline. In disputed red-light cases like this one, there is also evidence to gather while it still exists: signal timing records, intersection video and witness statements, as described on our intersection collisions page.

What this means for you

If your injury case was dismissed without prejudice, even more than once, do not assume it is over. McCullough v. Bennett confirms that the saving statute means what it says. But the one-year refiling window is strict, and the facts of each dismissal matter. Have a lawyer review the history of the case right away.

If you have not filed yet, do not count on the saving statute as a safety net. Our guide on why you should talk to a lawyer early explains how early action protects your claim, and our Dayton car accident lawyer page explains how we handle crash cases from start to finish.