When one speaks of the statute of limitations, it is important to know that there are several. Most causes of action have their own statute, though they may be very similar. It is important to know what the statute of limitations is on your cause of action before you begin to bring suit; if you are too late, the harm done to you may go unpunished.
What is a Statute of Limitations?
A statute of limitations is the amount of time that can pass before your legal claim can no longer be prosecuted. Statutes exist for civil and criminal causes of action, but usually civil statutes of limitations are shorter.
Determining when they begin to run can be difficult, however; the general rule is that statutes of limitations run from the date of the injury, the date it was discovered, or the date it would have been discovered with reasonable effort. The latter can be difficult to pin down; the standard of ‘reasonable effort’ is subjective, not objective.
The ‘discovery rule’ exists to help ameliorate this: it is a rule that provides that a claim can be filed after the period when ‘reasonable effort’ would have discovered the injury.
It is also important to distinguish a statute of limitations from a statute of repose. A statute of repose bars any claim by a plaintiff after the statutory period has expired, even if the plaintiff is injured after that time. For example, if there was a ten-year statute of repose on the manufacture of a certain model of car, and a plaintiff was injured in an accident with that car in year eleven, the plaintiff would not be permitted to file an action, even though they were injured.
Getting Around the Statute of Limitations
It is possible in some situations to claim an exception to the statute, or to argue that the statute has not yet lapsed. The concept of tolling is often used to try and obtain more time to file. The tolling of a statute of limitations means that the statute has stopped running for a certain period of time.
There are several factors in Florida that can toll a statute, including the minority of a party to a suit (if the plaintiff is a minor at the time of the injury), failure of service of process, and mental incompetency of a defendant (at the time of the injury, or later).
Minority does have one caveat in Florida: with the exception of medical malpractice, any injury against a minor as a result of negligence must be filed within four years of the date of the injury.
Another possibility that renders the statute of limitations null and void is the possibility of a defense waiver. If a plaintiff tries to file a suit after the expiration of the statute of limitations, the defendant can move for dismissal based on that expiration; in Florida, the statute is an affirmative defense, meaning that it bars recovery if deemed valid.
However, the defendant can waive that defense; if they feel strongly about their position being right, they can voluntarily agree to the suit. If a defendant has caused a plaintiff not to file until after the statute expired, however, the court will usually automatically waive the statute and allow the plaintiff to file.
Here’s What You Need to Know
When it comes to personal injury, Florida has a more plaintiff-friendly statute of limitation law than some states. There may be times when you have no control over the circumstances that enable you to pursue a claim. For example:
- You temporarily lost mental capacity
- You were a minor
- The defendant has fled the jurisdiction
In these instances, the court will often allow the statute to be ‘tolled’, meaning that it is paused temporarily in the interests of justice and resumed once you are in a position to proceed.
Absent unusual circumstances like these, you have up to four years from the date of the injury to file a lawsuit, although courts will grant an exception if your injury is of a nature that you don’t discover it until over four years have passed. One common example is developing mesothelioma after working at a poorly-maintained construction site, as this illness can take over a decade to manifest. Known as the discovery rule, it allows the statute of limitations to start running on the date you would have reasonably discovered your injury.
The four-year statute of limitations can vary based on the nature of the injury and even who the defendant is. For example, the statute of limitations for a medical malpractice injury is two years after discovering the injury or four years after the negligence took place. There are two notable exceptions:
- The injured party was a child and the malpractice claim began on or before their eighth birthday.
- The healthcare provider tried to hide their act(s) of malpractice, in which case the statute of limitations is two years from the discovery of the injury or seven years after the negligence occurred.
If you are suing the state government for injuries sustained on municipal property, such as a broken or uneven city sidewalk, or you were struck by a city, county, or state vehicle, you have to file a Notice of Claim with the Florida Department of Insurance at least six months before you can file the lawsuit. If the defendant is the federal government, it has up to one year to decide how to respond to your claim. If they deny it, you only have one year from the date they denied your claim to file your lawsuit.
Other statutes of limitation include:
- If someone dies from their injuries, their family only has two years to file suit or settle the claim.
- With boating or admiralty accidents, federal law limits the filing deadline to just one year.
- Injuries or death resulting from commercial airline flights also have a one-year statute of limitations.
A Miami Attorney Can Help You Today
If you have questions on the statute of limitations for a specific cause of action, please contact Kaire & Heffernan, LLC today. These statutes can be as precise as they are complex, so it is important for injured plaintiffs to consult with a Florida personal injury attorney as soon as possible. We will ensure that your claim is filed within the legal time limit and present an urgent and compelling argument for the compensation you need to recover.
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Mark Kaire has been practicing law in Miami for nearly 30 years. He is dedicated to helping the injured people of Miami receive compensation. Mr. Kaire has been blogging on Miami’s legal issues for many years.