The Oklahoma Bar Journal August 2022

C ivil P rocedure

COVID-19 Deadline Extensions: What Litigators Need to Know By Alexandra J. Gage T HE COVID-19 PANDEMIC BROUGHT COUNTLESS CHANGES to the legal commu nity, including the implementation of numerous deadline extensions granted by the government, courts and various state agencies. By analyzing opinions issued by the courts, attorneys can determine the most efficient arguments to successfully represent their clients and gain a greater understanding of the scope of the extensions granted by the courts.

covered by the SCAD orders in McBee v. Shanahan Home Design, LLC . 5 In the case, Ms. McBee filed suit on Nov. 19, 2019. However, service was not made until July 8, 2020. The defendant filed a motion to dismiss for failure to serve within the statutory 180-day limit. The trial court sustained the motion, concluding, “Because the Summons had not been issued prior to the COVID-19 issues that were addressed by the Supreme Court Directives, the directives do not apply.” 6 On appeal, the Oklahoma Supreme Court reversed the trial court’s holding and explained the tolling period in the SCAD orders applied to any deadline in which time would have fallen during the tolling period. Whether summons had been issued was inconse quential. This pushed Ms. McBee’s deadline to July 18, 2020, making service timely. Like McBee, several lower courts have continued to affirm the tolling period, extending deadlines in both state and federal jurisdic tions. 7 However, some courts have

broadened the deadline extension further beyond the tolling period. Of particular note is McLenithan v. Farmers Ins. Co., Inc., et al. The McLenithans filed a claim with Farmers Insurance under their homeowners insurance policy on July 9, 2020, which was subject to a one-year contractual suit limita tion provision. The plaintiffs filed suit Aug. 2, 2021, nearly a month after the one-year deadline in the policy. The SCAD orders, which tolled all deadlines, expired nearly a month before the date of the loss. Therefore, the plaintiffs instead relied on the Oklahoma Insurance Department’s (OID) PC Bulletin No. 2020-01, issued March 20, 2020. That bulletin stated insur ance carriers “shall suspend … all policyholder rights or benefits related to deadlines until 90 days after the state of emergency ends.” 8 The end of the state of emergency was not announced until May 3, 2021. Thus, the plaintiffs alleged they had 90 days from that date to file suit timely under the insurance agency’s order.

OKLAHOMA COURT DECISIONS On March 13, 2020, Gov. Stitt declared a state of emergency in Oklahoma due to the pandemic. 1 His executive order directed state agencies to “promulgate any emer gency rules necessary to respond to the emergency.” 2 In response, the Supreme Court of Oklahoma and the Oklahoma Court of Criminal Appeals released three emergency joint orders (SCAD orders) that ulti mately created a tolling period for all deadlines fromMarch 16, 2020, to May 15, 2020. 3 On May 16, 2020, all deadlines were to be enforced based on the number of days remaining before March 16, 2020. 4 Now, over two years after the tolling period ended, courts have begun issuing opinions regarding the scope of those deadline extensions. Most courts in Oklahoma have taken a broad stance on deadline extensions and tolling periods, especially when ruling on dispositive motions. The Oklahoma Supreme Court released an opinion upholding the tolling periods for all deadlines

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THE OKLAHOMA BAR JOURNAL