The COVID-19 pandemic has brought countless changes to the legal community. On March 13, 2020, Governor Stitt declared a state of emergency in all of Oklahoma due to the pandemic.[1] Governor Stitt’s executive order directed state agencies to “promulgate any emergency 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”), which ultimately created a tolling period for all deadlines from March 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]
Oklahoma Court Decisions
Since the SCAD orders’ termination, Oklahoma courts have interpreted and explained the extent of the COVID-19 deadline extensions. Most courts have taken a broad stance on deadline extensions and tolling periods, especially when ruling on dispositive motions.
The Oklahoma Supreme Court recently released an opinion upholding the tolling periods for all deadlines covered by the SCAD orders in Mcbee v. Shanahan Home Design, LLC.[5] In the case, McBee filed suit on November 19, 2019. However, service was not made until July 8, 2020. The Oklahoma Supreme Court explained that the tolling period in the SCAD orders pushed McBee’s deadline to July 18, 2020. Therefore, service was timely.
Like McBee, several courts have continued to affirm the tolling period extending deadlines in both state and federal jurisdictions.[6] However, some courts have broadened the deadline extension even further beyond the tolling period. Of particular note is the case of McLenithan v. Farmers Ins. Co., Inc., et al. The McLenithans filed a claim with Farmers under their homeowners’ policy on July 9, 2020, which was subject to a one-year contractual suit limitation provision. Plaintiffs filed suit on August 2, 2021, nearly a month after the one-year deadline in the policy. Although the SCAD Orders tolling all deadlines had expired nearly a month before the plaintiffs’ date of loss, they relied on the Oklahoma Insurance Department’s (“OID”) PC Bulletin No. 2020-01 issued on March 20, 2020. That Bulletin stated that insurance carriers “shall suspend . . . all policyholder rights or benefits related to deadlines until 90 days after the state of emergency ends.”[7] Based on the OID’s extension, plaintiffs alleged that the state of emergency did not end until May 3, 2021, giving Plaintiffs 90 days from that date to file suit timely.
Defendants argued in response that the extension did not apply because the OID Bulletin upon which the plaintiffs relied was rescinded on June 30, 2020, before the McLenithans’ claim.[8] Despite the rescission of the OID Bulletin and the termination of the SCAD order, the court denied the defendants’ motion to dismiss, determining that the Bulletin effectively delayed plaintiffs’ deadline to 90 days after the state of emergency ended and the matter was filed within the suit limitation period based on the original OID Bulletin.
The Barraza v. State Farm Fire & Casualty Co. court came to a similar conclusion on the same issue in a motion to dismiss.[9] Defendant argued that because the Bulletin was rescinded, the one-year limitation should at most be tolled to the date of rescission rather than the 90 days after the state of emergency. However, the court denied defendant’s motion to dismiss.[10]
The extension granted in the McLenithan case makes it clear that Oklahoma courts apply a broad interpretation of COVID-19 deadline extensions. On the other hand, Oklahoma courts have also provided some distinction as to the limit of COVID-19 deadline extensions. In the case of Head v. City of Choctaw, the Plaintiff failed to serve the Defendant within the 180-day statutory deadline, even when accounting for the SCAD Orders’ tolling period.[11] In fact, Plaintiff was three months over the deadline.[12] After hearing argument on the issue, the judge granted the City of Choctaw’s Motion to Dismiss.[13] Thus, it seems that Oklahoma courts may give leeway for actions which occurred two weeks after a deadline expired, but will find a three month delay unacceptable.
Nevertheless, one exception to Oklahoma’s broad interpretation of COVID-19 deadline extensions stands out. Oklahoma courts have explained that certain constitutional mandates may be exempt from deadline extensions. In re State Question No. 805, Initiative Petition No. 421 stands for the premise that duties imposed by the Oklahoma State Constitution are mandatory and can typically be accomplished while taking necessary safety precautions.[14]
Effective Arguments Made by Counsel in Oklahoma and the 10th Circuit States
Arguments relying on the SCAD order’s tolling period or a similar agency deadline extension have seen success. Courts have broadly interpreted deadline extensions and allowed many cases to extend their deadlines based on the orders, bulletins, and notices from various agencies.
Counsel has also found great success in receiving broad extension interpretation when utilizing prior cases to support deadline extensions. For instance, counsel in McLenithan v. Farmers Ins. Co., Inc. utilized two prior federal cases supporting the extension granted by the OID in support of his argument that an extension was warranted in that case even after the Bulletin providing the extension had been rescinded by the OID.[15]
Where generalized arguments of COVID-19 delays have failed, some attorneys have seen success in such generalized arguments if paired with another delaying factor. A cyberattack paired with the COVID-19 pandemic was satisfactory for the court in Cruz v. Reliance Standard Life Ins. Co.[16] The court determined that each excuse was ordinarily insufficient on its own.[17] However, the party “suffered a one-two punch consisting of a cyberattack and an international pandemic with real life changes within weeks of each other. . . Accordingly, the Court will allow the extension.”[18]
Unsuccessful Arguments Made by Counsel in Oklahoma and the 10th Circuit States
Although the courts have provided consistent leeway when it comes to the SCAD orders’ tolling period for set deadlines, most courts have rejected generalized arguments that COVID-19 caused delays in meeting deadlines, particularly in the federal courts. For instance, when counsel in G&G Closed Circuit Events, LLC v. Alvarez argued that the COVID-19 pandemic “slowed progress” on the case, the Western District pointed out that none of the counsel’s arguments were specifically directed to explaining how he was postponed from meeting the deadline due to the pandemic.[19] Similarly, the Western District stated in Gragg v. Roth, “Plaintiff offers no specific reason why COVID-19 caused this particular docketing error. . . . [S]uch generalized assertions involving COVID-19 do not suffice.”[20]
Other 10th Circuit courts rejected such generalized arguments as well. The plaintiff in Liming Wu v. Zinke argued that she missed a filing deadline because of inadequate medical care and treatment due to the pandemic.[21] The court specified that her argument was not supported by any explanation as to how the pandemic caused her to miss the filing deadline.[22] Her argument was rejected, and the court failed to find good cause for her extension of time.[23]
In conclusion, courts are wary of providing deadline extensions for generalized COVID-19 delays. If one plans to argue for an extension due to COVID-19 delays, one should always utilize specific information to explain exactly how the pandemic affected the timeliness of the action.
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[1] Exec. Off. Of the Governor, Executive Order 2020-07 (March 13, 2020).
[2] Id.
[3] First Emergency Joint OLitigationrder Regarding the Covid-19 State of Disaster, SCAD 2020-24 (Okla. 2020), 2020 OK 25, 462 P.3d 704; Second Emergency Joint Order Regarding the Covid-19 State of Disaster, SCAD No. 2020-29, 2020 OK 24, 462 P.3d 262; Third Emergency Joint Order Regarding the Covid-19 State of Disaster, SCAD No. 2020-36 (Okla. 2020), 2020 OK 23, 462 P.3d 703.
[4] Id.
[5] McBee v. Shanahan Home Design, LLC, 2021 OK 60, 499 P.3d 1.
[6] Memorandum Opinion and Order, Smith v. State Farm Fire & Casualty Co., CIV-21-660-C, (W.D. Okla. July 27, 2021); Order, Talley v. State Farm Fire & Casualty Co., CIV-21-682-F, (W.D. Okla. Aug 9, 2021); Barraza v. State Farm Fire & Casualty Co., 2021 WL 4139142, (N.D. Okla. Sept 10, 2021); Order on Mot. to Dismiss, McLenithan v. Farmers Ins. Co., Inc., et al., CJ-2021-37 (Craig Cnty. Dist. Ct., Dec. 7, 2021).
[7] PC Bulletin 2020-01, March 20, 2020.
[8] PC Bulletin 2020-01 (#3), June 18, 2020.
[9] Barraza v. State Farm Fire & Casualty Co., 2021 WL 4139142, (N.D. Okla. Sept 10, 2021).
[10] Id.
[11] See Def.’s Special Appearance & Mot. to Dismiss, Head v. City of Choctaw, CJ-2019-6526 (Okla. Cnty. Dist. Ct., Dec. 4, 2020).
[12] Id.
[13] Journal Entry, Head v. City of Choctaw, CJ-2019-6526 (Okla. Cnty. Dist. Ct., March 12, 2021).
[14] In re State Question No. 805, Initiative Petition No. 421, 2020 OK 45, 473 P.3d 466.
[15] See Pl.’s Resp. & Obj. to Def.’s Mot. to Dismiss, McLenithan v. Farmers Ins. Co., Inc., et al., CJ-2021-37 (Craig Cnty. Dist. Ct., Dec. 7, 2021).
[16] 2020 WL 1929405 (D.N.M., April 21, 2020).
[17] Id. at *2.
[18] Id.
[19] 2021 WL 5918560 (W.D. Okla., March 22, 2021).
[20] 2021 WL 5992287, *1 (W.D. Okla., Feb. 12, 2021).
[21] 2020 WL 3035154, *2 (D.N.M. June 5, 2020).
[22] Id.
[23] Id.
