What is the Statute of Limitations in a Personal injury Case?
The Statute of Limitations is a time period defined by law during which you must file a lawsuit or your cause of action against another person or corporation will be forever barred. It begins to run on the date that the cause of action accrues–which is typically the time at which an injury caused by another should be realized. How long the period lasts varies depending upon certain variables such as the type of claimant the age of the Plaintiff.
Common Personal Injury Statute Of Limitations Is 2 Years
For typical causes of action for negligence, the rule of thumb is that the Statute of Limitations will run on the two-year anniversary of the date that the cause of action accrues. You must file a lawsuit before it runs to protect your claim. There are a few exceptions to the two-year rule. Those are:
- Claims involving minors
- Claims where the injury is subject to the discovery rule
- Medical malpractice claims
- Claims against first-party automobile insurance
- Certain maritime claims
Claims Involving Minors
The law generally affords extra protection to children. They are deemed to not be mature enough to make responsible legal decisions for themselves. As a result, the two-year statute of limitations does not begin to run on the date of the injury. The two-year statute of limitations is tolled until the minor reaches the age of majority (18). Thus, when a minor sustains an injury, their statute of limitations generally does not run until their 20th birthday. However, this time can be shorter in medical malpractice claims due to tort reform restrictions. See the “medical malpractice claims” section below. This tolling provision also does not apply if the injury results in death of a minor.
Claims Subject To the Discovery Rule
Certain types of injures are not readily apparent. If the injury is inherently undiscoverable–that is it is unlikely to be discovered within the two-year statue of limitations by the exercise of due diligence–a person may be able to claim the protection of the discovery rule. If the court finds that it applies, then the statute of limitations is tolled until the time upon which the injury should have been discovered int he exercise of due diligence. This, however, is a vary narrowly-tailored exception to the rule which is not intended to be applied often. See: Computer Assocs. Int’l, Inc. v. Altai, Inc., 918 S.W.2d 453, 455 (Tex. 1996).
Medical Malpractice Claims
Medical malpractice cases have many rules and exceptions that can make determining the statute of limitations difficult. The general rule you should assume if there is time is the two-year statute. However, you should never wait until the last minute because there are a number of advantages to filing early in these cases. The minority rule can extend medical malpractice cases. However, the discovery rule has been abolished by statute in Texas with regard to medical malpractice claims. Rule 4590i did away with the discovery rule for medical malpractice cases. Now, one must assert a violation of the Texas Open Courts provision of the Texas Constitution in order to extend the statute of limitations. You should seek the advice of an attorney as soon as possible in medical malpractice cases to see what rules apply to your case.
Claims Against First-Party Automobile Insurance
When you file an uninsured motorist claim, an under insured motorist claim or a personal injury protection claim, you are filing a claim against your own insurance company pursuant to a written contract. If they fail to pay you after you have made a presentment of your claim to them, you have the right to sue them for breach of contract and/or a declaratory judgment action. The statute of limitations for breach of contract and the declaratory judgment is general four years from the date of the accident. The personal injury protection claim statute of limitations is often defined by your insurance contact. They are commonly three years, but you should always check your own contract for changes or alterations.
Maritime accidents have numerous statutes of limitations that may apply under state and federal law. The will vary depending upon whether your case is on shore or offshore, on a waterway, dock or the ocean and other factors. Depending upon how and where your accident occurs, you case may fall under State personal injury law, state worker’s compensation laws, the federal Longshore and Harbormen’s Act, or the Jones Act. For a full explanation, please visit the following link for a full explanation of the Statute of Limitations in maritime claims.