The Statute of Limitations

10
183

The Statute of Limitation varies by state and type of claim, and is designed to protect defendants. The belief is that revisiting claims years later causes more damage than justice. Facts and documents can be lost or become foggy after an extended period of time, making a fair trial hard to conduct.

But what about the plaintiff and their rights when filing a lawsuit? We especially wonder how the Statute of Limitation affects those looking to pursue personal injury lawsuits. Sometimes their injuries appear long after the particular breach of contract or dangerous product was used. Because the Statute of Limitation is such a varied and expansive set of laws that varies by state and type of claim, it is important that we are aware of general time frames for lawsuits when justice and large amounts of money are on the line.

We look to our Legal Resources to learn more:

How does the Statute of Limitation vary state to state?

Is it possible to file your case after the allotted time in your state?

What are the exceptions? Are there ever exceptions?

How does the Statute of Limitation vary by type of claim?

How can the public be more aware of the Statute of Limitation in order to not miss important deadlines when filing a lawsuit?

We look forward to learning more about the Statute of Limitation from our legal resources.

Legal resources, please post your answers in the comment field below!

10 COMMENTS

  1. Every state has a different statute of limitations for different types of actions. Arizona has a 2 year statute of limitations for injury claims, while New Hampshire has a 6 year statute of limitations for injury claims. Arizona has a 6 year statute of limitations for a contract action.
    The 2 year rule in Arizona has exceptions that are important to consider. If the claimant is a minor, the statute does not start to “run” until the minor reaches the age of majority. That means the minor who is injured has until age 20 to file his or her lawsuit.
    Another exception is a claim against a governmental entity. In Arizona governmental entities must be put on notice of a claim within 180 days of the occurrence. The notice of claim has to be detailed, and has to specify an exact amount that the claimant will accept. The governmental entity has 60 days to accept or reject the claim. No response is considered to be a rejection. The actual lawsuit has to be filed against the governmental entity within one year of the occurrence.
    Another exception is the “discovery rule.” Often a person is not aware of harm until later. This is seen most often in the medical negligence area. If a foreign body is left behind in a body cavity during surgery, this is usually not discovered until later. The date of the “discovery” of the wrong is the date the statute starts to “run.”
    Missing a statute of limitations is fatal. It is jurisdictional, not procedural. Missing a filing date by one day is just as fatal as one week, one month or one year. Filing early is always recommended.
    Never delay in consulting an attorney if you think you have a claim. The attorney in your state will know the statute of limitations time period for your case. Never wait until the end of the time period to consult. Your lawyer needs time to develop a case prior to filing.

  2. Speaking for Illinois, the statute of limitations is mostly a hard and fast rule. Saying something like, “I wasn’t emotionally ready to deal with the case” or “I wasn’t aware there was a time limit” or “I didn’t know my rights” is not enough to get around it.

    There are very few exceptions. If you are in a coma, that might toll the statute. In sexual abuse cases, if you can show a repressed memory (which is hard to do), you might get around the statute of limitations. But in general it’s not easy. For example, in medical malpractice cases for adults, you can never go farther than four years to sue. So if you had surgery in 2007 and discovered in 2013 that the doctor left a sponge inside of you, they’ll get away with it.

    As for time limit variations, injury cases tend to be shorter (usually two years) and civil cases are longer, e.g. 10 years on a written contract. The bottom line is that if you think you might have a case, you should act right away because any delay could cause you to lose your rights forever.

  3. Statutes of Limitation vary not only from state to state, but may vary drastically within a state depending upon the cause of action. For instance, in Tennessee the statute of limitations for Slander is 6 months. A will contest must be filed within two years. Property damages, economic loss from fraud or negligent misrepresentation and conversion must be commenced within three years. Contracts for services or realty, forcible entry and detainer or a promissory note generally have a six year statute of limitation. The vast majority of claims are personally injury claims. As a general rule personal injury claims must be brought within one year. The claims falling within the one year statute of limitations include: Personal injury, retaliatory discharge, wrongful death, professional malpractice of all types, workers’ compensation, libel, breach of fiduciary duty, consumer protection Act, and Tennessee Human Rights Act claims.

    Tennessee recognizes the discovery rule, which means that a limitation periods usually begins to run when a plaintiff discovers or should have discovered a cause of action exists. However, some limitation periods begin to run from an event, usually the event causing harm. To further complicate matters, statutes of repose trump the discovery rule and are a total bar to bringing a claim as a result of the passage of time. Some examples in Tennessee are: Medical Malpractice (3 years from the negligent conduct), Breach of corporate fiduciary duty (3 years), defective design or construction of real property and surveyor malpractice (4 years), and consumer protection act claims expire in 5 years.

    Generally speaking, with the exception of the six month statute of limitations for slander, Tennessee residents can assume they have one year from the discovery of an injury to bring any claim. But, the best advice is to visit an attorney as soon as they believe they have a claim. There are a myriad of other potential legal issues that may need to be considered, for which a trained, experienced attorney is the only professional upon whose advice the potential claimant should rely. More instance, in a workers’ compensation claim, an injured employee has certain obligations that must be met prior to triggering the employer’s liability.

    Most reputable attorneys will not charge a consultation fee. The best advice for a person who believes or even thinks he or she may have a claim: IMMEDIATELY CONSULT AN ATTORNEY.

  4. I am a consulting and testifying expert in investment misconduct and fraud cases, in a wide variety of venues (civil, criminal, and arbitration). The issue of statute of limitations is defined by the type of complaint or claim and accepted venue. For example, fraud cases on the state level often have a different eligibility guideline than those governed by federal statutes. Additionally, in many consumer related cases, the assigned venue is arbitration and not the courts. And in these cases, the appropriate regulatory or dispute resolution trier of fact is guided by internal policies and rules, and not statute. I use the term “guided” since nearly every venue and trier of fact has the flexibility to declare that a Plaintiff’s claim is eligible regardless of the bright line rule.

    Reasons for a liberal interpretation may be evidence of “continued fraud”, or indications that the victim did everything that could be expected to monitor the activity. Of course, it is possible to file any complaint or claim at any time. However, if it is outside the range of defined eligibility, the Defendants will attempt to get a summary judgment to have the case dismissed or evidence excluded that was outside the eligibility range. The best way for a victim to become acquainted with an eligible claim is to contact their local state Bar Association and ask for a referral to several attorneys who specialize in their area of anticipated damages. Most attorneys will provide a low cost or free initial consultation and assist in determining whether or not litigation is warranted.

  5. I am an attorney in Texas, and I have been practicing personal injury trial law for 21 years. Our Dallas, Texas based law firm specializes in representing individuals who have suffered a catastrophic injury or death. We have practiced throughout the State of Texas, both in state and federal court, and we have tried or settled thousands of personal injury cases of varying degrees.

    How does the Statute of Limitation vary state to state?

    The statute of limitations applicable to personal injury claims varies from state to state, but the majority of the states have a two year limitation period. Some states like Louisiana and Kentucky, have a one year limitation period, which presents many challenges. Other states, like Maine and Minnesota, have much longer time periods (i.e. 6 years).

    Is it possible to file your case after the allotted time in your state?

    In Texas, there are some instances where you can file a personal injury lawsuit beyond the two year limitation period. For example, in situations where the injured party did not discover their injury until after the two year period had expired, the law protects such claims by providing that the limitation period does not expire until two years after “discovery” of the injury. This is called the “discovery rule,” and it is applicable in some types of injury cases (i.e. product liability claims).

    What are the exceptions? Are there ever exceptions?

    In addition to those instances where the injury was not discovered until after limitations had expired, there are other exceptions that allow a case to be filed after the time period expires. In some cases involving minors, for example, the two year limitations period does not begin to run until their eighteenth birthday. Another exception would be a situation where the. Injured party in mentally incapacitated. In the scenario, the limitation period would be “tolled” during the time period of incapacity.

    How does the Statute of Limitation vary by type of claim?

    For most states, the limitations period applicable for injury claims does not vary. There are situations, however, that depending on the legal theories claimed, the limitations period could vary. In Texas, for example, personal injury claims based in “tort” (i.e. general negligence claims), have a two year limitations period. If the claim is based on “contract,” however, the limitations period would be four years.

    How can the public be more aware of the Statute of Limitation in order to not miss important deadlines when filing a lawsuit?

    The best answer is to consult with an attorney in your specific state as soon as possible. Most attorneys, like our firm, offer a free initial consultation. Other possible resources for information about statutes of limitation are the internet (although not completely reliable) and help lines at local lawyer associations (Dallas Bar Association, Texas Bar Association). The easiest and most reliable source, however, is a simple call to an attorney in your area.

  6. The state legislatures generally setup the laws regarding the statute of limitations. Their reasons vary by state so there is no real way to come up with an answer regarding their variance by state and claim other than to contact each legislature.

    Regarding filing a case after the allotted time, it may be possible to file a case after the statute has run but it would have to be due to an extenuating circumstances such as the statute being tolled. This tolling can for certain reasons as outlined by the state and/or case law. Some examples of tolling may include mental incapacity or incarceration.

    Regarding public awareness, most states have their statutes online which is normally where the limitations are listed. The best way for the public to
    be made aware of the limitations is to look up the statutes online regarding their cause of action or speak with an attorney in their home state or the state where they hope to prosecute the action.

  7. How does the Statute of Limitation vary state to state?
    It varies based upon the dates each legislature sets. Under our Constitution, the federal government has certain powers (maintain a military, establish treaties with foreign countries, establish an income tax code, etc.) while the states have great leeway in making their own laws. These laws include laws determining the time period for filing a lawsuit. This is why there is no national statute of limitations for claims filed under state law.

    Is it possible to file your case after the allotted time in your
    state?

    Typically no. The only possible exception to this rule is if the courthouse is closed for unusual reasons and you couldn’t file the lawsuit on the last day of the SOL. An example might be if your statute of limitations ran 9/12/01 and you couldn’t file your lawsuit on 9/11 because the courthouse was closed due to the terrorist attacks. Or, a hurricane/flood/earthquake caused a courthouse closure for a few days, preventing the clerks from processing your lawsuit and getting it filed.

    What are the exceptions? Are there ever exceptions?
    -There are no exceptions, however the Statute of Repose (SOR) may prevent someone from suing after an injury even if their lawsuit was filed within the SOL. A SOL begins to run from the date of an injury (an exploding toaster oven injured you on Jan. 1, 2010); while the SOR begins the day the act giving rise to the injury was completed (date toaster was purchased from the store). So if the toaster was bought Jan. 1, 1998, the SOR would bar a claim even though the lawsuit was filed within the SOL. So if you have a products liability claim or a probate case, you may be subject to the SOR even though you file a lawsuit within the SOL.

    How does the Statute of Limitation vary by type of claim?
    -It varies based upon the specific legal theory because some causes of action have shorter statutes of limitation than others. For example, the SOL for negligence in Florida is four years; however, if you are suing for medical malpractice (which is a specialized form of negligence) you only have 2 years to file a lawsuit. The legislature shortened the time period due to intense lobbying by the insurance companies who write malpractice policies. The insurance companies want to prevent malpractice victims from filing lawsuits because fewer claims mean more profit. Unfortunately for the injured, some malpractice symptoms don’t manifest themselves until the SOL has passed. A prime example of this would be the doctor who misses a cancer diagnoses while the disease is still treatable; or the doctor who incorrectly prescribes medication leading to kidney failure 3 years later. A shortened SOL will prevent many of these injured victims from ever getting compensated, simply because they did not know they were malpractice victims. But it’s great news for the malpractice insurers because they’re off the hook!

    Other causes

    How can the public be more aware of the Statute of Limitation in
    order to not miss important deadlines when filing a lawsuit?
    -Hiring a lawyer familiar with the SOL appropriate in their case is the best way, because lawyers keep up with changes in the law, including the SOL.

  8. Each state has its own set of limitations periods that apply to particular claims. Limitations periods for tort/personal injury actions are typically shorter than those applicable to breach of contract claims. There are also limitations periods applicable to certain types of claims that arise under federal law.

    Generally, most, if not all, states recognize the principle of contra non valentem which allows claimants in certain circumstances to maintain a suit even though it is filed after the expiration of the limitations period. This most commonly occurs in cases of fraud, where the claimant could not have reasonably discovered that he/she had a potential cause of action until a later time (“discovery rule”) or where the claimant was incapacitated or was effectively prevented from pursuing the action.

    However, most states also have statutes of repose that, in certain types of cases, set an outer limit of time after which no suit can be maintained even if an exception to the otherwise applicable limitations period would apply. Statutes of repose often pertain to professional liability claims (e.g., medical malpractice), construction defect claims and, in at least a few states, product liability claims.

    The most important thing for the public to know regarding limitations periods is that they generally cannot “sit on their hands” if they think they may want to pursue an action. That does not mean that people should sue at the drop of a hat but does mean that if you think you may want to pursue a lawsuit, you should start by trying to determine what the shortest limitations period may be for your claim (one good rule of thumb is 1 year from incident or accident because, to my knowledge, there is no limitations period shorter than that). In addition, it is important to keep in mind that except in the most straight-forward cases (e.g., auto accident), an attorney evaluating your claim will often need some time to consider whether to accept your case. In complex or difficult cases, this can take some time (e.g., need to obtain, review and analyze medical records for a medical malpractice claim).

  9. One related issue is the common “statute of repose,” under which a person
    who has an injury that is timely under the statute of limitations is still
    barred because too much time has passed from the date the defendant acted
    or produced a product.

    Common scenarios that are taken from cases I have defended:
    A punch press was manufactured in 1927, and a worker using it in 1996 was
    injured.
    A doctor operated 18 years ago and left a surgical sponge in the abdomen.
    This year the patient started having some problems and the sponge was
    discovered and removed.
    A person is injured due to a claimed building hazard. The building was
    constructed in 1970.

    In each case, the statute of limitations was met because it does not start
    until the claim “accrues,” when the injury happens. (There are often
    additional rules for late-discovered claims.) But trying to go back and
    recreate what happened years or decades before is difficult or impossible.
    The punch press case is an extreme example. Who knows what workplace
    regulations were in force in 1927, when the product was manufactured?

    The statutes of repose put an outside time limit on these claims. In my
    state of Michigan, the limits are:

    Medical malpractice claims – six years from the date of treatment
    Architects and contractors – ten years from the date of completion

  10. Statutes of Limitation are a defined time period by which a claimant must file his claim in court, or forever be barred from bringing his claim. A SOL for the many potential claims will vary from state to state. The majority of my practice is in Missouri where the SOL on a breach of contract action is 5 years for an oral contract and 10 years for a written contract. That does not mean that Illinois, Indiana, Florida and California must have the same SOL. Whenever I am posed with a question from an out of town caller (or more likely a relative who lives in another state), I always qualify my answer by saying I do not practice law in that state and am therefore unaware of certain niceties — such as statutes of limitation. I have frequently chatted with former law school classmates who practice in other states and am consistently surprised by how short the SOL are in some states. In that respect, I find Missouri to be quite forgiving on time allotted to file a claim against a potential defendant.

    An attorney should, without question, always be aware of the SOL in their particular field or for any cause of action on which they are providing legal advice. Attorneys should also be aware of when those statutes are deemed to “run from” under their own states’ laws. That is to say, you need to know when the clock starts ticking on your time to file a claim. For example, in a Missouri medical malpractice case where a doctor might leave an instrument in a patient’s body during surgery, that patient may not have any indication the instrument was left there within the 2 year SOL. But if shortly after the SOL runs, he starts experiencing medical complications, it would seem patently unfair to deny the patient the opportunity to file a claim. And for that reason, the state of Missouri (and likely most every other state) has included language that allows a claim to be brought within a certain number of years from the date the problem was discovered (or capable of being discovered).

    Tolling is another issue which may vary by state. Tolling is used to define a situation when the facts of the particular case extend date from which the SOL begins to run. A common example would be fraud. If a potential claimant is prevented from finding out about a claim because of the potential defendant’s fraudulent behavior, the SOL may potentially be tolled until the issue is discovered. Any attorney should obviously be aware of his state’s statutes that address tolling. Likewise, he would want to investigate and discover any facts that support such a claim. Tolling could save a claim for your client, but it may not be available on certain claims depending on your state’s laws.

    Finally, any attorney should be aware of his states statutes of repose. For example, medical malpractice claim in Missouri have a statute of repose whereby no claim can be brought more than 10 years after the occurrence. A statute of repose sets a “final cutoff” date by which a claim must be filed. And while tolling may save your claim, courts are typically much stricter in enforcing statutes of repose. So whereas, a SOL would be “3 years … unless something tolls the time limit,” a statute of repose would be “10 years … period.”

    Obviously, statutes of limitation are key to any attorney’s practice. You need to know when certain deadlines are in order to file a viable claim. This is even more important when you consider that every state may have a different statute of limitation for a certain claim. Without knowing what the SOL is for a particular claim in a particular state, no attorney can give proper advice to a potential claimant who may have waited too long to seek his advice.

Comments are closed.