Statute of limitations periods

Question 1

law vs. equity for duration of the claim

Answer 1

at law claims – SOL

equity claims – laches

Question 2

what is laches

Answer 2

Doctrine whose equivalent at-law claim is the defense of statute of limitations.

This defense asserts that the claim should be be dismissed based on:
(a) the plaintiff’s unreasonable delay in suing
and
(b) prejudice to the defendant

But, usually, equity follows the law, and SOL will apply

Question 3

how to raise SOL defense

Answer 3

affirmative defense / special plea

never raise with demurrer

need not plead the statute, you can just allege the cause of action is barred

Question 4

who bears the burden of proof in a SOL defense

Answer 4

defendant

Question 5

SOL as it relates to nonsuits

Answer 5

if P nonsuits the case, and P initially filed within the SOL, P has a right to refile within 6 months, or within the limitations period, whichever is longer

Question 6

SOL w/r to filing the case, counterclaims, cross claims and impleader

Answer 6

filing the case tolls SOL for P’s claim and for counterclaims and cross claims arising out of the same transaction or occurrence of his claims

-

IMPLEADER - if P files the case within 30 days of the expiration of the SOL, the defendant may implied up to 60 days past expiration

Question 7

when does the SOL begin to accrue?

Answer 7

start of injury, NOT the discovery of injury

Question 8

borrowing statute for contract claims

Answer 8

when the law of another state or country applies to the contract claim, that requires the court to apply the shortest limitation period between Virginia and the other states

Question 9

SOL for breach of written K

Answer 9

5 years

Question 10

SOL for intermittent or continuous torts

Answer 10

intermittent / episodic torts - different SOL each time an episode starts up

continuing torts – one cause of action with SOL starting at beginning of the tort

Question 11

SOL for fictitious Doe defendants

Answer 11

if you do not know D’s name or identity, you may file against “John Doe” and the SOL will be tolled for 3 years as you get a chance to discover who he is

if Doe Defendant has actual knowledge of the case within the SOL, an amendment to name him specifically after the SOL has run may be deemed timely

Question 12

SOL for breach of oral K

Answer 12

3 years

Question 13

SOL for personal injury

Answer 13

2 years

Question 14

characteristics that toll the SOL

Question 15

SOL for fraud

Answer 15

2 years

Question 16

SOL for wrongful death

Answer 16

2 years from death

[but if it stems from a PI claim, must have brought the PI claim in proper period]

Question 17

SOL for medical malpractice

Answer 17

generally 2 years but may depend on age of victim

Question 18

SOL for property damage not covered by UCC [ex: nuisance]

Answer 18

5 years

Question 19

SOL for defamation

Answer 19

1 year

Question 20

SOL for nonphysical, personal torts. [like malicious prosecution]

Answer 20

2 years

Question 21

SOL for unlawful detainer

Answer 21

3 years

Question 22

SOL for property for sales damage covered by UCC

Answer 22

4 years

Question 23

SOL for property for sales damage covered by UCC

Answer 23

4 years

Question 24

Exceptions to the “no discovery” rule

when does clock start?

Answer 24

(1) fraud, mistake, undue influence
– clock starts when fraud is discovered

(2) proceeding for money on deposit with a bank
—clock starts upon request in writing by check or otherwise

(3) malicious prosecution
— clock starts when underlying case ends

(4) asbestos
— clock starts upon diagnosis of resulting condition

(4A) latent injury resulting from exposure to a substance or use of product other than asbestos related injuries in (4) and malpractice claims against a healthcare provider
—- clock starts when P knew or should have known about injury and its casual connection to the substance

(5) contribution / indemnity
— clock starts when indemnity/contributee pays first claim which is more than her fair share

(6) child sex abuse
— clock starts when victim turns 18 if injury is known; if unknown, when fast and casual relation is first communicated to victim
—- 20 year max period for suit computed from date of sexual abuse

(7) breast implant failure / injury
— clock starts when fact of injury and cause is first communicated to victim by physician

(8) open accounts
— clock starts at the later of the last of the services, charges, or payments

(9) implanted medical device failure claims against non-medical practitioners
— accrues when P knows. or should have known of malfunction

(10) foreign object in the body cavity

(11) missed malignant tumor or cancer
— accrues at diagnosis

(12) malpractice for continuous treatment
—- accrues at end of last treatment

Question 25

what characteristics toll SOL

Answer 25

(1) filing the complaint

(2) minority of the P, unless med mal case

(3) disability of P

(4) bankruptcy of D

(5) obstruction of filing the suit [D is hiding out]

(6) grace periods allow for appointing a personal representative in a wrongful death action

Question 26

in med mal case, how does age affect the tolling of the SOL?

Answer 26

In a medical malpractice case, the age of the victim may affect when the suit can be brought.

if victim is 0-7 years old, suit must be brought by age 10

If victim is 8 and older, the victim has 2 years from the end of treatment to bring the case

Question 27

VTCA SOL

Answer 27

1 year