Author: 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.