Understanding the Statute of Limitations and Your Personal Injury Case

Most people have heard of the statute of limitations, although not everybody is clear on how it works.

Misunderstanding the statute of limitations or how it applies to your case, however, could kill your personal injury claim and leave you with nothing. 

The Purpose of Establishing a Statute of Limitations

Imagine that tomorrow, someone files a wrongful death lawsuit over the Kennedy assassination, which occurred in 1963. How much sense would that make? The purposes of the statute of limitations are:

• To avoid litigation cases using stale evidence; and
• To avoid clogging the courts with old claims.
   

Statutes of limitations apply not only to lawsuits but to criminal offenses as well.

The Personal Injury and Wrongful Death Statutes of Limitations

Every state and the District of Columbia set their own statute of limitations deadline for filing personal injury and wrongful death lawsuits. Personal injury limitation periods range from one year to six years after the accident. If the claim is based on a continuing course of conduct (nursing home abuse, for example), the “date of the accident” becomes the date of the most recent incident.

In Florida, the personal injury statute of limitations deadline is two years after the date of the accident. If the victim dies from their injuries, the victim’s estate executor has until two years after the victim’s date of death to file a wrongful death lawsuit. 

Special Case: Florida Car Accident Claims

Florida is one of about a dozen states that administers a “no-fault” auto insurance system. Most of the time, if you suffer a car accident, you must file a claim against your own personal injury protection (PIP) insurance. You only have 14 days after the accident to seek medical treatment and file a claim.

Exceptions to the Ordinary Statute of Limitations Deadline

Several common exceptions apply to the personal injury statute of limitations. Nevertheless, every state’s law differs somewhat in the details.

The Discovery Rule

Some injuries are difficult to detect at first. Suppose, for example, that your doctor accidentally leaves a scalpel inside of your body during surgery. You might not realize what happened until some time after the accident.

If something like this happens, the statute of limitations is “tolled” (the countdown stops temporarily) until you know, or should know, of your injury and the cause of it. The discovery rule mainly applies to medical malpractice claims, but it can apply to other types of claims as well.  

Minority

A minor (under 18) cannot file a lawsuit in their own name. Because of this, many states extend the statute of limitations deadline to give minors a chance to file after they turn 18. Florida, for example, allows a minor up to seven extra years to file a lawsuit. 

This won’t help, of course, if the defendant was injured at five years old – even after the deadline, they will still be too young to file a lawsuit. In these cases, an adult can file a lawsuit on behalf of a minor.

Mental Incompetence

The statute of limitations might be “tolled” during a time when the injury victim is mentally incompetent.

The Defendant Is Out of State or Whereabouts Unknown

The state might toll the statute of limitations clock while the defendant is out of state or “whereabouts unknown” since it is impossible to notify such a defendant of the existence of the lawsuit. 

The Statute of Repose: The Exception to the Exception

The statute of repose sets a hard deadline: no matter what exception to the statute of limitation might apply, your claim dies if the statute of repose deadline passes without you filing a lawsuit. For example, a typical statute of repose might be ten years after an accident.

How To Beat the Statute of Limitations Deadline: Steps To Take

Filing a lawsuit will beat the statute of limitations deadline. But what actions constitute “filing a lawsuit”? Do the following:

• File a lawsuit complaint with the court clerk of the appropriate court. Consider whether you belong in small claims court or regular court. 
• The court will draft a summons to notify the defendant on how to respond to avoid a default judgment against them.
• Pay the filing fee, which might be several hundred dollars.
• Arrange for a neutral third party to “serve process” on the defendant. Serving process means delivering a copy of the complaint and the summons, in a legally permissible manner. 

The defendant might try to evade service of process. However, you won’t necessarily miss the statute of limitations deadline just because the defendant is playing cat and mouse with you. To beat the statute of limitations deadline, you must pursue service of process diligently. 

If you do, then you will have beaten the statute of limitations deadline as of the filing date of the complaint. If you don’t, the court might retroactively declare that you have missed the statute of limitations deadline.