In personal injury cases, the Statute of Limitations is the specific amount of time you have to either settle your claim with the insurance company, or file a lawsuit. If that time period passes, and you haven’t settled your claim, you will lose your right to sue the at-fault party. After the limitations period, for all intents and purposes, your case is closed.
Each state has its own statute of limitations laws. To complicate matters, most states have different limitations for different case types. For example, a state can have separate limitations periods for:
- General personal injuries
- Medical malpractice
- Wrongful death
- Libel and slander
If you’ve been injured as a result of someone’s negligence, you must check the statute of limitations in the state where the incident occurred. Be sure to check the period which applies to your particular type of injury.
How To Preserve Your Legal Rights
The statutes of limitations for all 50 states give enough time to settle a minor personal injury claim with an insurance company. Most statutes give two to three years from the date of injury. In some cases, however, an injured victim might not be able to settle their claim within the given time frame.
Reasons for not timely settling a claim include:
- The person who caused the accident (the at-fault party) left the scene of the collision without leaving contact information.
- The at-fault party has no insurance.
- The at-fault party entered into an agreement to pay monthly installments for medical bills and property damage, but stopped paying.
- The insurance company and claimant have been unable to negotiate a settlement amount acceptable to both sides.
“Tolling” the Statute
If the statute of limitations deadline is rapidly approaching, and you still haven’t settled your claim, there is a way to extend the limitations period indefinitely. You must file a lawsuit to extend the statute past its expiration date. Once a lawsuit is filed, the law automatically extends the limitations period.
This indefinite suspension is referred to as “tolling” the statute. Once the statute of limitations is tolled, you’ll have plenty of time to continue pursuing a settlement without worrying about missing any deadlines.
Disadvantages of Filing a Lawsuit
If you’ve been negotiating with an insurance company, and you file a lawsuit to toll the limitations period, there’s a very good chance the adjuster will stop communicating with you. You’ll find the adjuster won’t be returning your phone calls or emails.
This is because, when you file a lawsuit, your claim will be taken away from the adjuster and given to an attorney. When the insurance company’s attorneys get involved, you’ll have to retain your own personal injury attorney to represent your interests. Outside of small claims court, you won’t be able to deal with the company’s high powered legal team on your own.
When Does the Statute of Limitations Begin?
The limitations period almost always begins on the day you were injured. If you’ve been injured in an accident, write down the exact day it happened. The longer your case goes on, the more important the limitations period becomes. Missing the statute of limitations by even one day can end any possibility of compensation.
There are some exceptions to limitations periods, mostly restricted to medical malpractice. The exception occurs when you can prove that the physician’s negligence, and your resulting injuries, didn’t reveal themselves right away. This exception is referred to as the discovery of harm.
Discovery of Harm
In medical malpractice cases, sometimes evidence of a physician’s negligence doesn’t appear until after the limitations period has expired. In such a situation, the statute of limitations can be extended. It will begin once you discover the injury, or when the court determines you should have discovered the injury.
Example: Discovery of Harm
Jim lives in Florida, where the statute of limitations for medical malpractice is two years. After undergoing surgery, he felt fine for a long time. But several months after the two-year limitation period expired, Jim began to feel very ill. Testing revealed that his illness was not new, but a direct result of the first surgeon’s negligence.
In a case like this, the court may allow Jim to file a lawsuit after the medical malpractice statute of limitations expired. The basis of this exception is the delayed discovery of his illness.
Extensions due to delayed discovery of harm are not automatic. Each case stands on its own merits, and the cause of the delay of discovery must be reasonable.
Courts look very closely at discovery of harm assertions. To convince a court to extend the limitations period, you have to prove you couldn’t have reasonably discovered evidence of the physician’s malpractice until after the statute of limitations expired.
If the court feels a reasonable person could have discovered evidence of the malpractice before the time limit expired, the court will probably not allow you to file a lawsuit.
Claims Adjusters and Statutes of Limitations
Insurance company claims adjusters are experts at prolonging personal injury claims for as long as possible. Their multi-billion dollar employers don’t like giving their money away.
Delaying a settlement by even one month means the money continues to earn interest for the company. The more claims are delayed, the more money the company makes in interest. Moreover, if the claim isn’t settled within the limitations period, the insurance company keeps all the money, not just the interest.
You MUST be conscious of the limitations period throughout the length of your claim. The adjuster won’t alert you to it.
Example: Delaying Settlement
A young woman, Sara, was injured when she was rear-ended in a multi-vehicle collision. Sara filed her claim with the first driver’s insurance company. The claims adjuster told her there were several more claims against their insured, so it would take a while to sort out.
Over time, Sara continued to call the adjuster with status reports on her medical treatment. She felt the adjuster was friendly and supportive, and she trusted him. She finished her treatment, and eventually the statute of limitations date began to approach.
Sara told the adjuster she was concerned because her claim still hadn’t settled. The adjuster told her not to worry, her claim would reach settlement soon.
One week before the statute of limitations was set to expire, Sara called the adjuster, but was unable to reach him. She continued to call several times a day. She finally reached someone else at the insurance company, who said the adjuster wasn’t feeling well, but he would call her back in a day or two. He never did.
The limitations period expired, and Sara was left with nothing but a bunch of medical bills she had to pay herself.
The Importance of Venue
You must check the statute of limitations in the state where the accident occurred. Be careful here. If you live in South Carolina, and are involved in a car accident in Georgia, the statute of limitations that applies to your case is the one for Georgia (two years), NOT the one for South Carolina (three years).
It is the location, or venue, of the accident, not your state of residence, that controls the limitations period. You can check the statute of limitations for your state here.
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