Statute of limitations periods Flashcards
law vs. equity for duration of the claim
at law claims – SOL
equity claims – laches
what is laches
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
how to raise SOL defense
affirmative defense / special plea
never raise with demurrer
need not plead the statute, you can just allege the cause of action is barred
who bears the burden of proof in a SOL defense
defendant
SOL as it relates to nonsuits
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
SOL w/r to filing the case, counterclaims, cross claims and impleader
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
when does the SOL begin to accrue?
start of injury, NOT the discovery of injury
borrowing statute for contract claims
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
SOL for breach of written K
5 years
SOL for intermittent or continuous torts
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
SOL for fictitious Doe defendants
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
SOL for breach of oral K
3 years
SOL for personal injury
2 years
characteristics that toll the SOL
SOL for fraud
2 years
SOL for wrongful death
2 years from death
[but if it stems from a PI claim, must have brought the PI claim in proper period]
SOL for medical malpractice
generally 2 years but may depend on age of victim
SOL for property damage not covered by UCC [ex: nuisance]
5 years
SOL for defamation
1 year
SOL for nonphysical, personal torts. [like malicious prosecution]
2 years
SOL for unlawful detainer
3 years
SOL for property for sales damage covered by UCC
4 years
SOL for property for sales damage covered by UCC
4 years
Exceptions to the “no discovery” rule
when does clock start?
(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
what characteristics toll SOL
(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
in med mal case, how does age affect the tolling of the SOL?
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
VTCA SOL
1 year
