Statutes of Limitation

Question 1

In what cases do SOLs govern?

Answer 1

In cases at law
* When equity asserted, may argue “laches,” which will bar P who has delayed unreasonably in suing, to the prejudice of prospective D
* Usually, equity “follows the law” and SOL applies

Question 2

What is the general rule on acrrual?

Answer 2

The statute starts to run from accrual of the cause of action
* VA statute runs from the date of injury or breach, not from time P discovered harm or reasonable person would have

Question 3

What is the SOL for personal injury?

Answer 3

Two years–doesn’t matter if intentional or negligent

Question 4

What is the SOL for personal torts, like malicious prosecution

Answer 4

2 years (and SOL accrues when underlying case ends)

Question 5

What is SOL for defamation?

Answer 5

1 year–short

Question 6

What is SOL for property damage?

Answer 6

5 years
* If something like nuisance, if there is a series of starting-and-stopping, argue: (a) continuing nuisance AND (b) separate causes of action for each nuisance (“intermittent” nuisance)

Question 7

What is the SOL for property damage for sales covered by UCC (e.g., breach of warranty)?

Answer 7

4 years

Question 8

What is SOL for fraud?

Answer 8

2 years

Question 9

What is SOL for wrongful death?

Answer 9

2 years from death
* BUT claim is barred if decedent was injured more than 2 years before his death and died from those injuries without ever bringing suit

Question 10

What is the SOL for written Ks?

Answer 10

5 years

Question 11

What is the SOL for unwritten Ks?

Answer 11

3 years

Question 12

What is the borrowing statute?

Answer 12

When the law of another state applies to K, VA will apply the shortest limitation period
* Example–State A has SOL on written K for 3 years (will apply)

Question 13

What is the SOL for unlawful detainer?

Answer 13

3 years

Question 14

How does D raise SOL defense?

Answer 14

• By special plea and NOT demurrer (cannot allege new facts)
• D need not plead specific statute–simply must allege cause of action is barred
• D bears burden of proof

Question 15

How is SOL “tolled,” and what does that mean?

Answer 15

Tolling means stop it from running
* Being of unsound mind or minority can toll the statute

Question 16

What are the special tolling rules for Med Mal?

Answer 16

• Minority does not toll in MM if child was 8 or older when cause of action accrued
• Starts running when COA accrued and must be asserted within 2 years
• If D was under 8, may sue until his 10th bday

Question 17

What stops the SOL?

Answer 17

FILING, not serving

Question 18

What is the rule with respect to fictitious (“Doe”) defendants and the SOL?

Answer 18

Case may be brought against unknown owner/operator of motor vehicle as “Doe”, and SOL tolled for 3 years to give P a chance to discover D’s identity

Question 19

What happens with counterclaims and crossclaims after P files her claim?

Answer 19

P’s filing tolls his own claims and counterclaims and crossclaims that arise from same T/O as P’s claims

Question 20

What is the rule of impleader with respect to SOL?

Answer 20

If P files case within 30 days of the expiration of the SOL, D may implead up to 60 days past the statute’s expiration