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Statute of Limitation: Not Always So Cut and Dry

Statute of Limitation: Not Always So Cut and Dry

 Posted by:    Mar 19, 2011  

As background, when we talk about statute of limitations, we are speaking of the deadline wherein a claim must be filed as a lawsuit. Failure to file a lawsuit by that particular deadline results in the claim dying and a claimant getting potentially nothing for their injury or loss.


Certain claims are clear.

1) CLAIMS AGAINST BARS: A claim against a tavern for over-serving a drunk who then goes out and crashes into innocent bystanders must be brought within 1 year.

2) CLAIMS FOR INJURIES ON PROPERTY OF ANOTHER: Slip and fall claims must be brought within 2 years.

3) CAR CRASH INJURIES: A simple car crash must be brought within 3 years.

4) MEDICAL/ LEGAL MALPRACTICE: Medical or legal malpractice claims must be brought within 2 years of the time that person should have reasonably known of the malpractice. When a person should reasonably know about malpractice is called the "discovery rule."

Okay, so these are the basics. Truly no attorney capable of reading a simple statute as it relates to the above claims should ever have too much difficulty keeping their client's case alive by simply filing suit within the time required, right? Wrong! Bad lawyers or distracted lawyers mess these up a lot.


Now let's get out of the shallow end of the pool and talk about the more complex statute of limitations issues.

The statute of limitation for a negligent driver causing a rollover is 3 years. But if the cause of the crash is a classic defective tread separation of a well known tire, the lawyer who doesn't bring that claim within 2 years from reasonable notice of the defective tire is probably going to have a lot of explaining to do.

Bringing a claim for a negligent condition that causes a victim to fall on a walkway is a 2 year statute of limitation, but when it arises out of the operation or use of motor vehicle (which can be a very tricky determination), the statute of limitations is 3 years.

Say your are hit by a driver who has small insurance coverage limits. After waiting for almost 3 years to figure out the extent of your injuries, your lawyers sues the at-fault driver. Assume it takes 2 years to get to court. But the morning of the third day of trial, you reach a settlement for the coverage limits. On the day you sign papers to settle the case with that driver, you have 2 years of additional time to bring a claim against your own insurance company for underinsured motorist coverage.

So, at the end of your ordeal, it is possible to settle your case 5 years after the accident and still have 2 more years to bring your particular claim under the provisions of your own insurance company uninsured motorist/underinsured motorist coverage.

Now this is as "deep end" as it might get. Assume instead of the above scenario, the at-fault driver, jumps out of his car a says, "gosh, I'm sorry, I have no insurance." Whereas in the prior scenario, matters could drag on for as long as perhaps 7 years without busting a statute of limitations, the present lawsuit against the uninsured motorist insurance company must be brought within 2 years. Yes--just 2 years from when you reasonably should have known that the driver who hit you has no coverage.

Changing the situation only slightly completely changes the required time period when the lawsuit must be brought. Assume that instead of the guy getting out of the car and admitting to no insurance, he instead gets out of the car and says, "I borrowed the car, I don't know if it has insurance." This scenario has a totally different statute of limitations to bring a claim against your own uninsured motorist insurance.

Assume that it turns out that the car involved in the crash doesn't have insurance. But the driver is a mystery. Until the driver actually gets sued or confesses that he also had no car with any insurance coverage on it, or he simply doesn't answer and lets a court enter a default judgment, then you don't reasonably know the existence of no insurance. So, say that it takes 3 years to finally sue the driver. And perhaps even an additional 6 months to get a default judgment against the driver. At that point, then there is a 2 year additional time-period with which to bring the claim. As you can see, 7 years, 2 years, 5 ½ years, all might be the applicable statute of limitations on this claim.

Nervous yet? You should be. These complicated statutes of limitation separate the men from the boys.

3 years for the statute of limitation for a car crash. But, a special governmental notice which must be filed within 180 days with the correct Colorado official or the claim is over on the 181st day after the accident.

The 18 years old's Statute of Limitation is 3 years from the anniversary of the crash. The 16 years old's statute of limitation runs a little less than 5 years after the crash on his 21st birthday.

A 2 year statute of limitation from the date of death. But for the first year after the death, the exclusive right to bring the lawsuit is the spouse. In the second year it can be any other lineal heir.

A client's applicable statute of limitation requires careful and precise thought. Often the limitation is clear cut. But not always.

At Anderson Hemmat we realize how complicated a statute of limitations can get, especially to someone who has never been the victim of someone else's negligence before. That's why we are happy to have you talk with one of our attorneys about your case and have it reviewed for free. Please call us today so you can speak with one of our attorneys.

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