A statute of limitations is a law that sets a time limit for taking legal action. In criminal cases, it limits the amount of time a state or the federal government has to charge and prosecute a suspect accused of breaking the law. In a civil case, the statute limits the amount of time the injured party has to file a lawsuit demanding compensation from the party responsible for the injury.
Statute of Limitations for Personal Injury Cases
A personal injury takes place when one party intentionally or negligently harms another party physically, mentally, or emotionally. Examples include vehicle accidents, medical malpractice, dog bites, premises liability, product liability, and wrongful death. If you’ve been damaged by a person, company, or other entity, the state of Virginia gives you two years to file a civil lawsuit against that party in cases of fraud, defamation, or personal injury. In cases of breached contracts, trespassing, or property damage, the statute increases to five years. If you file a suit after the statute has run, your case will be dismissed, and you’ll lose the right to recover compensation for your medical expenses, property damage, lost income, and pain and suffering.
This does not mean that your case has to be resolved in two years; legal action must simply be initiated within that time frame. Most personal injury cases, however, do not begin with the filing of a lawsuit. In a vehicle accident case, for example, the injured party generally files a claim for damages with the at-fault driver’s insurance company first and settles out of court. This means that you or your attorney sends the insurer a letter demanding what you consider a fair settlement. The insurer is likely to make a lower counteroffer, and negotiations begin. If the insurer doesn’t offer a fair award, you have the option of filing a lawsuit within two years and taking your case to court for a decision, but the insurance negotiation process can sometimes drag on for months or longer. The insurer might deliberately drag its feet, hoping to delay resolution until the statute of limitations has run. At that point, you’ve lost the option of filing a suit, and your power decreases drastically because you have no leverage over the insurer. You then have to accept the best offer you can get. A personal injury attorney knows how to fight the insurer’s delaying tactics while keeping an eye on the “clock” in order to file a suit, if necessary, before the statute runs. There are other procedural requirements, as well, that your lawyer can ensure you satisfy, so you don’t lose your right to compensation because you didn’t know about or failed to comply with the court’s requirements.
Tolls and Exceptions to the Statute of Limitations
In most cases, the statute of limitations begins to run on the day of your personal injury and expires two years later, on the day before the second anniversary of the incident that damaged you. If, for example, you were hurt in an accident on March 25, 2023, you would have to initiate legal action by March 24, 2025, at the latest. If you wait until March 25, you will be one day late, the defendant’s lawyer can move for a dismissal because the statute has run, and your case will be dismissed. There are some cases, though, in which the statute “tolls” or pauses:
- Minors. If you’re under the age of 18 when you’re injured, the statute will not begin to run until your 18th birthday, and you must take legal action by the day before your 20th birthday. Children who are emancipated before the age of 18 have two years after their emancipation to file a suit. Parents who have incurred medical expenses due to a minor child’s personal injury have five years to file for recovery of those expenses, only.
- Incompetency. If you are somehow incapacitated due to physical injury or mental incompetency and unable to pursue legal action, the statute will toll until you’re deemed well and competent or until a guardian or conservator has been appointed to act on your behalf. If this has not happened by the time the two-year anniversary of the incident nears, your attorney can file a motion to toll the statute for one more year.
- Discovery. If you are unaware of your injury when it happens, the statute will not begin to run until you become aware of it. In a medical malpractice case, for example, you might not know there was a botched procedure until the physical effects of the medical error surface. If your injury is a psychological one, you might not have any knowledge of it until it’s diagnosed. In such cases, the statute begins to run on the day when you become aware of your injury.
- Claims against the government. If the defendant in your claim is a town or city in Virginia, you have six months to file a written notice of claim. If you’re suing the state of Virginia, you have one year to file your written notice of claim. After doing so, you then have 18 months to file your actual lawsuit against the state, but it must be filed no more than two years after your injury occurred. Claims against the United States can be filed only by using a pre-printed Federal Form 95. The time limit for doing so varies according to the nature of the suit.
- Delayed Service. Except in the case of a claim against the government, you have one year after filing your claim to serve the defendant notice of your suit, as long as you’ve filed it before the statute of limitations has run.
A personal injury attorney familiar with all the details and exceptions related to the statute of limitations can probably manage to push your filing deadline back to as much as four years after your injury if necessary. It is not a good idea, however, to wait very long to consult an attorney. You should do so soon after you’ve been damaged because the wheels of justice can turn very slowly, and you don’t want to risk losing your opportunity to recover damages. Taking action soon after your injury also means that any witnesses in your case will have fresher memories than they might have a few years down the road.
Have You Suffered a Personal Injury in Virginia?
An experienced personal injury attorney can make sure you comply with the statute of limitations and other procedural requirements. Contact us online or call us at 540-341-0007 to schedule your free consultation. You pay no attorney fees until we win your case.