Statutes of Limitation Flashcards
Statute of Limitations
General rule is that the statute starts to run from “accrual” of the cause of action. The Virginia statute runs from the date of injury or breach.
Exceptions to the SOL Rule
There are exceptions to the general rule:
1. For fraud, mistake, undue influence, the cause of action accrues when the plaintiff discovered the harm
2. For malicious prosecution, the cause of action accrues when the underlying case ends.
3. For contribution claims, the cause of action accrues when one pays more than her fair share.
4. There is a special rule for malpractice through continuous treatment/service.
The SOL Periods: Personal Injuries
2 years
The SOL Periods: Nonphysical personal torts
2 years
The SOL Periods: Defamation
1 year
The SOL Periods: Property Damage
5 years
The SOL Periods: Property Damage for Sales Covered by UCC
4 Years
The SOL Periods: Fraud
2 years
The SOL Periods: Wrongful Death
2 years from death.
But the claim is barred if decedent was injured more than 2 years before his death and died from those injuries without ever bringing suit.
The SOL Periods: Written Contracts
5 Years
The SOL Periods: Unwritten Contracts
3 years
Borrowing Statute
When the law of another state or country applies to the contract, Virginia has a “borrowing statute” that requires the application of the shortest limitation period.
The SOL Periods: Unlawful detainer
3 Years
How does a defendant raise the statute of limitations defense?
By Special plea
Who bears the burden of proof concerning the statute of limitations?
The defendant.
Tolling the Statute
To “toll” the statute means to stop it from running
Filing Stops Statute
Remember, you must file the case (NOT serve process) before the statute runs.
In other words, filing tolls the statute.
Fictitious (“Doe”) Defendants
A case may be brought against an unknown owner or operator of a motor vehicle as “Doe” and the statute of limitations will be tolled for 3 years to give the plaintiff a chance to discover that defendant’s identity.
Counterclaims and Crossclaims
The plaintiff’s filing the case tolls the statute for his own claim and for counterclaims and crossclaims that arise from the same transaction or occurrence as the plaintiff’s claims.
Impleader
If plaintiff files the case within 30 days of the expiration of the statute of limitations, defendant may implead up to 60 days past the statute’s expiration.
