Leatherby v. Greenspun: No Substitute for Certified Mail
While many people equate deliveries by Federal Express, UPS, and others to delivery via the United States Postal Service, these methods are not interchangeable in the context of service of statutorily-mandated legal documents. That is the lesson learned from Leatherbury v. Greenspun, 939 A.2d 1284 (Del. 2007), a case that our Appellate Practice Group successfully argued before the Delaware Supreme Court on behalf of Defendant Greenspun.
In Leatherbury, the plaintiff sought to extend the statute of limitations in a medical malpractice case by invoking a statutory tolling provision. Under the tolling provision, which is similar to provisions in many other states, the plaintiffs in medical malpractice cases can extend the two-year statute of limitations for a period of 90 days. The provision is intended to allow plaintiffs additional time to investigate potential claims. Plaintiffs can only toll the statute of limitations, however, if they serve the defendants a Notice of Intent to Investigate that complies with the terms of the tolling statute, 18 Del. C. § 6856(3). One statutory requirement is that the Notice of Intent to Investigate be sent “by certified mail, return receipt requested.” The plaintiff in Leatherbury, however, sent his notice via Federal Express.
The Delaware Supreme Court, following the old adage that unambiguous statutes are not subject to judicial interpretation, held that the term “certified mail” could only refer to the United States Postal Service’s certified mail. The term does not include delivery through private carriers such as Federal Express. Although some statutes provide for service “by certified mail, or its equivalent,” Section 6856(3) does not contain language allowing service via an “equivalent” method. As the Supreme Court noted, in order to secure the benefits of the tolling statute, plaintiffs in medical malpractice cases have an affirmative duty to establish compliance with the terms of section 6856(3), and courts have “no authority to vary the terms of a statute of clear meaning or ignore mandatory provisions.” Because the plaintiff’s Notice of Intent to Investigate did not comply with the statute, his complaint was barred by the statute of limitations.
While the result in Leatherbury could be viewed as a harsh result based upon a technicality, equitable arguments cannot overcome specific statutory directives. When a statute mandates the use of certified mail, there is no substitute. If there are concerns about delivery unrelated to a statutory mandate, rather than use a substitute method of delivery, litigants should abide by the statutory requirements and, if warranted, also send the notice by a secondary method. Sending an additional notice eliminates the risk that a court will later conclude that a substitute or “equivalent” method of service did not comply with statutory requirements.
