What is the Statute of Limitations for Personal Injury Cases in Virginia?
Many would say two years. While that’s true most of the time, it’s not always true. And the exceptions can be critical.
A fundamental question in every personal injury case is, What is the statute of limitation? That means, What is the deadline in which a lawsuit must be filed against the at-fault person?
There is not just one statute of limitation. A statute is a written law enacted by a legislative body (in Virginia, the General Assembly). Virginia statutes include various statutes of limitation and statutes relating to them, including statutes for personal injury lawsuits.
The General Two-Year Statute of Limitations for Virginia Personal Injury Claims
The Virginia statute normally applicable to personal injury cases provide that a lawsuit for personal injury must be brought within two years after the “cause of action accrues.” A personal injury action generally “accrues” on the date of the injury. So the usual Virginia statute of limitation for personal injury cases is two years from the date of injury.
What if you were injured from a car wreck that wasn’t your fault, and you didn’t think you were hurt and didn’t go to the doctor that day. Then a few days later, your neck and back began to hurt (which isn’t unusual), and you wanted to see your family doctor but couldn’t see her until a few days after that. When does your statute of limitation begin to run for your claim for your back and neck injuries from the wreck? Virginia law is clear: While your symptoms didn’t develop until a few days after the wreck, your injuries occurred at the time of the wreck. So your statute of limitation began to run on the date of the wreck. If you wait to file suit until two years after you first knew you were hurt, you can count on your case being dismissed and your recovery being $0.
Limited Extensions of the Statute of Limitations in Certain Virginia Injury Cases
For certain types of personal injury cases—such as some medical malpractice cases and some products liability cases (from defective products)—the statute of limitation can be extended beyond two years. But those type cases are beyond the scope of this paper. Just realize that Virginia statute of limitation law is not as simple as a broad two-year rule, and it’s important to have an experienced personal attorney on your side to evaluate the statute of limitation and all other aspects of your case.
An important exception to the two-year Virginia statute of limitation is for injured minors (persons under the age of 18). The lawsuit for the minor need not be filed within two years of the injury; it can be filed anytime within two years of the minor’s 18th birthday. A rare exception for that is for minors who have been legally emancipated. Other exceptions can be in medical malpractice cases, which again are beyond the scope of this paper.
Here’s another exception to the Virginia two-year statute of limitation for personal injury cases: When someone is killed in a wreck or other incident, and the personal representative (administrator or executor) of the decedent’s estate brings a lawsuit against the at-fault person, generally the statute of limitation for that lawsuit, called a wrongful death action, is two years from the date of death. So if the decedent lived for a month before dying from his injuries, his statute of limitation began to run from the date of his death, not the date of his injury.
What if the injured person later dies, before the expiration of the two-year statute of limitation, for reasons unrelated to the wreck or other incident? The personal representative of the decedent’s estate can still file a lawsuit against the at-fault person for the decedent’s injuries. This is commonly called a survival action. A favorable exception to the Virginia two-year statute of limitation applies. The survival lawsuit does not have to be filed within the two-year statute of limitation if it is filed within one year after the qualification of the decedent’s personal representative (except if the qualification is delayed until more than two years after the death, the qualification is considered to have occurred on the last day of the two-year period). .
Another exception to the Virginia two-year personal injury statute is for injured persons who’re incapacitated (such as someone adjudged mentally incompetent). Unless a guardian, committee, of conservator has been appointed for an incapacitated person, his statute of does not run during the period of incapacity. If a guardian, committee, of conservator has qualified, the suit must be filed within the normal two-year period or within one year after the qualification, whichever is later.
Why Statute of Limitations Mistakes Can Permanently End a Case
As you can see, this is not simple. And statutes of limitation are heartless. Generally, nothing can be done to save a lawsuit not brought within the applicable statute of limitation. Sometimes parties agree, before the statute of limitation expires, to extend the statute of limitation beyond the statutory deadline. That, though, can be problematic and must be done with great caution. The key to not having a statute of limitation problem with your personal injury suit is having an experienced personal injury attorney, such as the attorneys at Slaughter & Lupton Law.
