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Limitations and Reporting

Fairfax Injury Lawyer Brien Roche Addresses The Limitations and Reporting Requirements
Brien Roche

Statute of Limitations

When you are involved in an auto crash whatever claim you may have is governed not only by a statute of limitations but also by reporting requirements in your insurance policy.

The time for bringing a claim is defined by state code.That defines the time within which a lawsuit must be filed at the courthouse. Failure to file in time means your claim is barred.

Every claim has a statute of limitations. In Virginia that limitation is defined in most cases by when the injury occurred. That is when some damage was incurred. That is why in Virginia in some cases your limitation period may have run before you ever knew you had a claim. Virginia in general is not a discovery state. That is your limitation does not begin to run when you discover you had a claim. It begins to run when you suffer some damage. There are exceptions to that.

Two Years For Most Injury Claims

Most injury claims in Virginia are governed by a two year limitation. The limitation as to most claims involving minors does not begin to run until the minor turns eighteen. There may be special rules that apply to people with disabilities. There are also special rules as to periods of time when the injured person is incapacitated. The limitation period may also stop running based on certain conduct of the at fault party. These rules are somewhat complex. They are not addressed in this post.

In regard to contracts the limitation is three years for oral contracts. It is five for written. There may be warranty claims, in the nature of contract, that could carry a longer limitation.

You should operate on the premise that most injury claims have a two year limitation. This limitation begins to run when any injury is suffered. Call, or contact us for a free consult.

Limitations In Medical Malpractice Cases Must Be Addressed Early

In a medical malpractice case the statute of limitations is the first question that any lawyer is going to look at.

Frequently the patient remains under the care of the doctor for that condition for some time after the substandard act or omission occurs.  If that is the case then the limitations may not begin to run until the end of that continuous treatment period.  The question of whether or not that “continuous treatment rule” applies is a tricky question.

You should not assume that just because you remained under the care of that doctor that therefore the continuous treatment rule applies.  That is something that a lawyer needs to give you advice on.  The better practice in terms of handling medical malpractice cases is to operate on the premise that the statute of limitations begins to run when the patient suffers some injury as a result of the substandard conduct.  That statute of limitations then runs for a period of two (2) years.

Statute of Limitations In Medical Malpractice Cases Can Vary

There are other cases where the statute of limitations may not begin to run at the time of the substandard conduct by the doctor.  That may apply to instances where some surgical equipment is left inside the patient.  Those again involve some tricky issues. In order to determine when your statute of limitations may begin to run you need to seek legal advice.

Likewise there is a somewhat different statute of limitations that may apply to minors in cases of malpractice.  The Virginia General Assembly over the last many years has tinkered with that statute of limitations. If you’re dealing with a case involving a minor you need to seek prompt legal advice as to when that statute of limitations began to run and when it expires.

Rule of Thumb

The rule of thumb that you should follow is that the statute of limitations is two (2) years from the date that the healthcare provider engaged in the act or omission that caused you injury. If it turns out you have more time than that then all the better.

Statute of Repose

The statute of repose protects contractors and owners. If you have a claim relating to a property defect you need to look at this statute. It imposes an outside bar date by which suit must be filed at the courthouse. This can supersede the special protections that minors have. Also it can supersede other favorable limitations that may help a plaintiff.

Limitations For Process Service-The Need For Dispatch

An unpublished case from the First Circuit Court of Appeals in New England sets forth everything that should not be done in terms of serving process on a defendant.  Process is the complaint initiating a lawsuit along with the summons. The summons tells the defendant what it must do when it is served.  That process in most cases must be served promptly after the filing of the lawsuit. 

In this case the suit was filed in Massachusetts State Court. There was a requirement that process be served within 90 days of filing.  Service was attempted within that 90 day period. It was not completed.  The plaintiff requested an extension of time. That was granted. Thereafter the case was removed to Federal Court. There had been other ill-fated attempts had been made at service.  Once in Federal court, the plaintiff requested further extensions of time to complete service. Service was not completed.   The defendant then renewed the motion to dismiss the case because of the failure to timely effect service. 

Serve Process Promptly

Although the defendant was eventually served with process, the appellate court noted the case was pending in state court for 280 days as of the time of removal. The court further noted that if the plaintiff had exercised any degree of due diligence, service could have been effected within 120 days. The failure to do so was a basis for dismissal with prejudice. Although this ruling is harsh it is not unusual. Many courts across the US require the plaintiff to act with speed to serve all of the defendants. Process service is not something to be taken lightly.

In Virginia the rule is that process initiating a lawsuit should be served within one year of the date of filing. For more information on process see the pages on Wikipedia. For more information on civil litigation see the pages on Wikipedia. Call, or contact us for a free consult.

Insurance Reporting Requirements

In addition to statute of limitations there may be certain reporting requirements that apply to your insurance policy. Typically, what liability policies call for is that the insured give seasonable notice to the insurer after an injury.  The reason for that seasonable notice is to allow the insurer to investigate.  If  you deprive the insurer of that chance to promptly investigate then that may be a basis to deny coverage.

As such, it is important to keep in mind not only the statute of limitations but also the reporting requirement under your policy.

Call, or contact us for a free consult. For more information see my book entitled Law 101 and the pages on Wikipedia.


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