Attorney Elizabeth M. Allen

Deadlines. They’re a fact of life. We face deadlines for filing income tax returns, for filing health insurance claims, for submitting college applications, for renewing driver’s licenses, and the list goes on.

Few deadlines are as important as those we encounter when we make a personal injury claim for damages against a negligent third party. Under Virginia law, if a plaintiff does not file his personal injury lawsuit and/or a required notice of claim within a prescribed time period, his claim for monetary damages will be barred forever. Period. End of case.

What are some of the most important deadlines you should remember?

• The Two Year Rule in a Personal Injury Case.

In Virginia, when a competent adult 18 years of age or older is injured through the negligence of a third person, let’s say in a motor vehicle accident, he has two years from the date of injury to file his lawsuit in a court with jurisdiction to hear the case. In the law, this deadline is referred to as a statute of limitations. If the plaintiff files his lawsuit just one day late, his claim will be barred.

If the claimant names the wrong defendant in his lawsuit, the result will be the same. What do I mean? If the plaintiff believes the negligent driver of the car that struck him was James Smith and he sues James Smith, only to find out after the two year deadline has passed that the negligent driver was actually Fred Jones, it will be too late to sue Fred Jones. There’s a lesson here. Never wait until the last minute to hire an attorney to file suit on your behalf in a personal injury case. It takes time to investigate and prepare a lawsuit to ensure your case is filed on time and against the correct defendant(s). Many attorneys will not take a case when they are first contacted close to the deadline.

• Exceptions to the Two Year Rule for Minors and Persons under Disabilities.

There are some narrow exceptions to the two year statute of limitations in personal injury cases, but they can be tricky. For example, if a personal injury claimant was a minor (under age 18) at the time he was injured, the statute of limitations may be tolled until he becomes 18 years of age. From the date of his 18th birthday, the claimant will have an additional two years within which to file his lawsuit. In effect, his 20th birthday becomes the deadline for filing his lawsuit.

If an adult personal injury claimant was under “a disability” at the time of his injury and has been declared incapacitated by an appropriate court, the statute of limitations may be extended in his case under certain circumstances. This rule most often applies to those who are mentally incompetent.

There are even exceptions to the exceptions! In a medical malpractice case against a health care provider, a minor must file suit within 2 years of the date of the last act or omission giving rise to his malpractice case unless the minor was less than eight years old when the malpractice occurred. In this situation, the minor will have until his 10th birthday to file suit.

Are these and other exceptions complicated? Yes, they are. And I haven’t even listed them all! Whenever you or a family member has been injured through the negligence of another, contact an attorney for advice regarding the particular statute of limitations applicable to your case. Do it promptly. Otherwise, you may miss a critical deadline for filing your lawsuit.

• Written Notice of Claims must be filed in personal injury cases against a City, Town, County, State, or the United States.

If it weren’t enough that Virginia law requires you to file your personal injury lawsuit within the statutory statute of limitations, you also need to know there are additional, mandatory deadlines to comply with when you have a claim against a city, town, county, state or the United States. And these deadlines differ according to the governmental entity involved.

When your personal injury claim is against a city, town or county in Virginia, you must file a written notice of claim within 6 months of the date you were injured. The law requires that the notice contain specific information relating to the nature of the claim and that it be filed with one or more persons designated by law. The same is true with personal injury claims against the State of Virginia, except, as regards the State, you have one year after injury to file your written notice of claim with the State Director of the Division of Risk Management or the Attorney General. In other words, where a governmental entity is concerned you have to file both a Notice of Claim and a lawsuit, and the filing deadlines are not the same.

There’s a special trap here. Where claims against the State of Virginia are involved, you must file your lawsuit against the State within 18 months of filing your written notice of claim, but no later than two years after the date you were injured.

Claims against the United States are another kettle of fish altogether. Within 2 years of the date of your injury, you must fully and correctly complete and file, with a designated federal official a printed Claim Form provided by the federal government. The Form is referred to as Form 95. Once you file Form 95, special rules/laws apply with respect to the date when you can or must file your lawsuit against the United States.

Tolling provisions and exceptions may apply to some of the above claims against governmental entities – but not always. These laws change frequently. Even some of the general statements made above may no longer apply by the time you read this article. Sometimes you may not even be aware that your claim involves a government entity. The driver who runs into you may have been an employee of a government entity and in the scope of their employment when the accident occurred. Or the driver may have been on an errand for a government entity, so that the driver was an “agent” of the government entity when the accident occurred. In these circumstances, you would usually want to file suit against both the driver and the government entity. If there is some special notice requirement or other deadline, it may be too late to sue the government entity.

So be smart. If you believe you were negligently injured by the fault of another, contact an attorney for advice about the deadlines applicable to your case.

About the Author: Elizabeth Morrell Allen has been engaged in the practice of personal injury law for over 30 years at the law firm Allen & Allen. From 1988 to 2004, Beth served as a branch manager of the firm’s Petersburg, Virginia office.

How Insurance Companies Deny, Delay, Confuse or Refuse

The American Association for Justice Reports

Click here to download the full American Association for Justice report.

Here is a snapshot of the report in the Executive Summary:

“The U.S. insurance industry has trillions of dollars in assets, enjoys average profits of over $30 billion a year, and pays its CEOs more than any other industry. But insurance companies still engage in dirty tricks and unethical behavior to boost their bottom line even further.

The current economic turmoil affecting the insurance industry on Wall Street has only made the outlook bleaker for consumers living on Main Street. Insurance companies are likely to demand huge rate hikes and refuse more claims than ever. Some of America’s most well-known insurance companies-the same ones that spend billions on advertising to earn your trust-have endeavored to deny claims, delay payments, confuse consumers with incomprehensible insurance-speak, and retroactively refuse anyone who may cost them money.

This report describes some of the most egregious ways the insurance industry attempts to make money at the expense of consumers. These are some of the tricks of the trade:

Denying Claims

Some of the nation’s biggest insurance companies- Allstate, AIG, and State Farm among others-have denied valid claims in an attempt to boost their bottom lines. These companies have rewarded employees who successfully denied claims, replaced employees who would not, and when all else failed, engaged in outright fraud to avoid paying claims.

Delaying Until Death

Many insurance companies routinely delay claims, knowing full well that many policyholders will simply give up. Some have gone so far as to lock paperwork away in safes. Undoubtedly, the most shameful use of delay tactics has been by long-term care insurers, who often take advantage of their policyholders’ age and ill health. In the words of one regulator, “the bottom line is that insurance companies make money when they don’t
pay claims…They’ll do anything to avoid paying, because if they wait long enough, they know the policyholders will die.”

Confusing Consumers

Insurance contracts are some of the most dense and incomprehensible contracts a consumer is ever likely to see. More than half of all states have enacted “plain English” laws for consumer contracts, yet many Americans still do not fully understand the risks they are subject to. After Hurricane Katrina, insurance companies used obscure “anti-concurrent” clauses to get out of paying claims. Consumers who purchased hurricane insurance and thought they were covered suddenly found the coverage eliminated by an obscure clause they could not hope to understand.

Discriminating by Credit Score

Increasingly, insurance companies are using credit reports to dictate the premiums consumers pay, or whether they can even get insurance in the first place. The practice penalizes the poor, senior citizens with little credit, and those who have suffered financial crisis through no fault of their own. Insurance companies have denied fiscally responsible people who paid their bills in cash, but refused renewals because of a lack of credit history. Others have seen auto rate hikes near 600 percent despite clean driving records after falling on economic troubles.

Abandoning the Sick

Health insurers looking to cut costs have taken to canceling retroactively, or rescinding, the policies of people whose conditions have become expensive to treat. Some insurance companies have even offered bonuses to employees who meet “cancellation goals.” Rescission targets patients in the midst of treatment when they are at their most vulnerable-even cancer patients in the midst of chemotherapy have been targeted.

Canceling for a Call

Many people are rightly reluctant to make small claims on their home insurance for fear their insurance company will raise their premiums. But few realize that insurance companies often refuse to renew a policy because the policyholder did as little as inquire about the possibility of making a claim. Many times an insurance company will count an inquiry over the phone as the same as a claim, and then they will do everything
in their power to drop the policyholder.