Thursday, June 5, 2014

Statutes of Limitations in Virginia: What You Need to Know

As always, before reading this post, please review my disclaimer by following the link above or by clicking on this link.  As always, legal principles discussed apply only to the Commonwealth of Virginia.

Introduction

I have found during my legal career that the concept of statutes of limitations is something almost everyone knows something about, but barely anyone knows all that they need to know.  Most people, for example, know (although this "knowledge" is somewhat incorrect, as I will explain later) that in civil law a statute of limitations is a point at which someone "cannot be sued" due to the lapse of time.  Some people might even know the amount of time certain statutes of limitations are set at.  Most people, however, do not seem to know when the statute starts running, what causes the statute to stop running (referred to as "tolling"), what kinds of cases the statute applies to, and how to actually use the statute as a defense.  In today's blog post, I will address some of the most important things to know about statutes of limitations.

Where the Statute Comes From

As you might guess from the name, "statutes of limitations" are statutory - as in, they come from the written law of a government - rather than being common law.  This means where there is no statute setting out a limitations period, there is no statute of limitations.  So yes, there are types of lawsuits for which there is no statute of limitations at all.  For example, divorce.  You and your spouse could have separated 30 years ago, and you can still file a suit for divorce which includes a request for alimony (although practically speaking it's not likely the alimony will be granted at that point).

Now there is a doctrine in equity (to see a discussion about the difference between "common law" and "equity" see my post regarding "specific performance" in contract law) called "laches."  Laches is a rule developed by the court that basically forbids someone from bringing a lawsuit after it has been so long that bringing the lawsuit now is unfair.  It does not have a defined amount of time, and can be used in both law and equity cases, and even in cases where there is also a statute of limitations (although it is very rarely successful in such cases).  Because of the uncertainty of laches, however, and the fact that there are several kinds of cases it does not apply to by law, it is a much weaker defense than a statute of limitations.

So, Where Can I Find the Statutes of Limitations?

So, now that you know statutes of limitations come from written law, you might be wondering where in the Virginia Code to find them.  The answer is, they are all over the place, frequently well hidden, and not at all easy to find.  For example, the statute of limitations on bringing an equitable distribution action after divorce is found in Title 20 of the Virginia Code, while the statute of limitations on defamation actions is found in Title 8.01.  The result becomes that a lawyer generally just has to know them (in fact, Virginia's specific statutes of limitations feature prominently in the Virginia Bar Exam).  For simplicity sake, I will provide a list of the most important statutes here (although this is by no means an exhaustive list, and it's important to know that there are exceptions to all of these, but if I don't list it here, it's an uncommon exception):
  • Breach of Written Contract:  5 years
  • Breach of Oral or Implied Contract:  3 years
  • Tort claim for personal injury:  2 years
  • Tort claim for sexual abuse of a minor:  20 years
  • Tort claim by a parent for their own costs of caring for a personally injured minor:  5 years
  • Tort claim for property damage:  5 years
  • Defamation:  1 year
  • Personal actions in tort not otherwise specified:  2 years
  • Claim for Equitable Division of Property after divorce granted in another state:  2 years
  • Wrongful death:  2 years
  • Fraud:  2 years
  • Medical Malpractice:  2 years
  • Other Professional (including Legal) Malpractice:  3 years if the professional was hired without a written contract, 5 years if there is a written contract
  • Enforcement of Judgments*:  20 years, with the right to renew for another 20 for good cause shown
* - Enforcement of judgments would be things like garnishments, asset seizures, etc.

When Does the Clock Start?

So, that's a very nice list above, but it doesn't do you much good if you don't know when the clock starts.  So, the clock starts on the date that a cause of action "accrues."  As you might imagine, the basic rule is simple, but there are numerous exceptions.  The basic rule is that the cause of action accrues on the date of injury or the date the contract is broken - whether you know it has occurred or not.  There are numerous exceptions to this rule, however.  Here are some of the key exceptions to the general rule of when accrual occurs:
  • In medical malpractice, if a foreign object is left in your body, fraud prevented you from discovering the error, or your doctor failed to diagnose cancer, the date of accrual is the date of discovery of the error, however the statute becomes one years from the date of the error, or one year from the date of discovery of the error, whichever is later.
  • For service contracts where both payment and service is ongoing, along with open accounts generally (for example, credit cards) the date of accrual is the date the contract is terminated, or the date of the last payment made under the contract, whichever is later.
  • In the malpractice context (including medical and legal), efforts by the professional to fix the error generally cause the date of accrual to not occur until those efforts end.
  • In cases of legal malpractice, the date of accrual is the date the whole legal representation ended (even if the actual malpractice occurred early in the representation)
  • In cases of fraud, the date of accrual is the date of discovery of the fraud (or when a person acting reasonably should have discovered the fraud)
  • In cases of personal injury for asbestos exposure, the date of accrual occurs when a relevant diagnosis has been made (except that no action can be brought more than two years after the person's death)
  • In cases of malicious prosecution or abuse of process, the accrual date is the date that the relevant criminal or civil action is dismissed
  • In cases of sexual abuse of a minor, the date of accrual is the date that the minor turns 18
Ok, Does Anything Stop the Clock?

So, now that you know the length of the common statutes and when the clock starts ticking, the next important thing to know is if anything stops the clock.  There are many provisions of law that provide for "tolling" of the statute of limitations, which basically say that while such event is ongoing, the statute is not running.  Some tolling statutes are permanent (meaning that if you have a 5 year statute, but the statute is tolled for 1 year, you really have a 6 year statute), and some are temporary (so if time would have expired while the statute was being tolled, you only have a set amount of time after the tolling ends to bring the suit, no matter how long the statute was tolled).  Here are some of the most common examples of situations where a statute is tolled:
  • You file a lawsuit with regards to the subject and the lawsuit is dismissed without prejudice (so you have the right to re-file) except if the dismissal is due to a nonsuit - this is a permanent toll
  • You file a lawsuit with regards to the subject and the lawsuit is voluntarily non-suited - this is a permanent toll and you can re-file within the new limitations period caused by the suit being tolled during the pendency of the lawsuit, or within six months after the dismissal, whichever is later.
  • The plaintiff is incapacitated at the date of accrual - this is a permanent toll and ends when the incapacity ends (note that a person under 18 who is not emancipated is automatically considered "incapacitated" except in the case of medical malpractice)
  • The plaintiff becomes incapacitated during the statute of limitations period and has no conservator, guardian or committee - this is a permanent toll and ends when the incapacity ends
  • Death of a potential plaintiff - this is a temporary toll; once a personal representative (administrator, executor, etc.) is appointed for the estate, the suit must be brought within the original limitations period or within one year after appointment of the personal representative, whichever is later
  • Death of a potential defendant - this is a temporary toll; once a personal representative (administrator, executor, etc.) is appointed for the estate, the suit must be brought within the original limitations period or within one year after appointment of the personal representative, whichever is later
  • The time during with the bringing of a lawsuit is barred by an injunction or bankruptcy - this is a permanent toll and ends when the injunction expires or bankruptcy case ends
  • If your lawsuit is for something for which the defendant has also been criminally charged, the statute is tolled while the prosecution is pending - this is a permanent toll and ends when the criminal case ends
It's worth noting that not all tolling periods are also periods where a lawsuit cannot be brought.  For example, a 12 year old who has been injured in a car accident has until he is 20 to sue (2 years after he turns 18), but his parents could bring the suit on his behalf (called an action "by his next friend") while he is still a minor.  As a result, in some cases the tolling really is a big benefit to the plaintiff since it can dramatically extend the time in which a lawsuit can be brought.

Ok, I've Definitely Been Sued Outside of the Statute of Limitations - What Do I Do?

If after reading all of the above you believe you are being sued after the statute of limitations, you might wonder what to do.  After all, most people erroneously believe a lawsuit simply cannot be brought after the limitations period ends.  This is not true!  A lawsuit can be brought at any time.

Those of you who read my blog post three weeks ago will remember that the statute of limitations is an affirmative defense.  That means it's actually on you, the defendant, to not only raise this defense, but prove it.  If your case is in Circuit Court and you file an Answer without mentioning the statute of limitations, you've waived it, and the suit will move forward.  Same in the General District Court if pleadings are ordered and you fail to raise it in your Answer and Grounds of Defense.

This is one of the reasons understanding the statute of limitations is so important to a defendant.  It is your burden to raise and prove the defense and failure to do so loses you the entire defense.

Conclusion

Statutes of limitations really are dangerous elements of civil law for unrepresented people.  Lots of people have abstract knowledge of limitations periods, but almost no one outside the legal profession knows how to use that knowledge.  If you are involved in a lawsuit with a statute of limitations period and want advice on moving forward, feel free to call (703)281-0134 or e-mail me at SLeven@thebaldwinlawfirm.com to set up a consultation.  Our initial consultations are free for up to half an hour!

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