Statutes of Limitations

Question 1

what are statutes of limitations??

Answer 1

SOL’s are codified and govern in cases of action at law

Question 2

do SOL’s apply in equity causes of actions?

Answer 2

when an equity cause of action is asserted - may make an argument for application of “LACHES” (bars a P who has delayed unreasonably issuing, to the prejudice of the prospective D)

BUT usually equity “follows the law” and the statute of limitations applies

Question 3

what is the general rule as to when a statute starts to run?

Answer 3

a statue starts to run from “ACCRUAL” of the cause of action

VA statue runs from the DATE OF INJURY OR BREACH –> i.e. not from the time the plaintiff discovered the harm (or a reasonable person would have discovered it)

Question 4

what are the exceptions to the general rule that statute starts to run from accrual of the cause of action

Answer 4

there are 4:
1) For fraud, mistake, undue influence, the cause of action accrues when the plaintiff discovered the harm (or when a reasonable person would have discovered it)

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 –> medical malpractice - cause of action accrues at the end of related treatment

Question 5

what are the SOL time periods?

Answer 5

a) PERSONAL INJURY - 2 years (theory of recovery does not matter - so does not matter if intentional or negligent)

b) NONPHYSICAL PERSONAL TORTS (like malicious prosecution): 2 years

c) DEFAMATION: 1 year

d) PROPERTY DAMAGE: 5 years
(i.e. make a distinction about one continuing nuisance - where there is maybe only one cause of action –> and an intermittent nuisance - where could argue there is a different 5-year statue each time nuisance starts up again)

e) PROPERTY DAMAGE for sales covers by UCC: 4 years (i.e. breach of warranty)

f) FRAUD: 2 years

g) WRONGFUL DEATH: 2 years from death. But the claim is barred if the decedent was injured more than 2 years before his death and died from those injuries without ever bringing suit.

h) WRITTEN CONTRACTS: 5 years

i) UNWRITTEN CONTRACTS: 3 years
But note the 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. So if State A has a statute of limitation on written contracts for 3 years, it will apply, but if State A has a statute of limitation of 10 years, Virginia’s would apply.

J) UNLAWFUL DETAINER: 3 years

Question 6

How does a defendant raise the statute of limitations defense?

Answer 6

a D raises the SOL defense by special plea

Question 7

Can the defendant raise the statute of limitations by demurrer?

Answer 7

No. A demurrer cannot inject new facts.

Question 8

Must the defendant plead the specific statute?

Answer 8

No, he just must allege cause of action is barred.

Question 9

Who bears the burden of proof concerning statute of limitations?

Answer 9

The defendant

Question 10

what does it mean to “toll” a SOL?

Answer 10

it means to STOP IT FROM RUNNING

Question 11

what can toll a statute from running?

Answer 11

being a minority or being of unsound mind can toll the statue

for a minority - the SOL begins to run when the minor turns 18 OR is judicially emancipated

Question 12

what is the special rules on tolling of medical malpractice claims?

Answer 12

Minority does NOT toll the statute in medical malpractice if the child was age 8 or older when the cause of action accrued. So the statute starts running when the cause of action accrued and must be asserted within 2 years.

What if the child was under age 8 when the medical malpractice cause of action accrued? He may sue until his tenth birthday

Question 13

what must you do before the SOL runs?

Answer 13

you must file the case (not serve process) before the statute runs

**filing tolls the statute

Question 14

what about cases in where there is an ‘unknown’ defendant?

Answer 14

A case may be brought against an unknown owner or operator of a motor vehicle as “Doe” (John or Mary), AND the statute of limitations will be tolled for 3 YEARS to give the plaintiff a chance to discover that defendant’s identity

Question 15

what does the P’s filing of the case toll?

Answer 15

it toll this statue for his (P’s) claim AND for counterclaims and crossclaims that arise from the same transaction or occurrence as the P’s claims

Question 16

what effect does filing and SOL have on IMPLEADING?

Answer 16

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.

Question 17

for fraud, mistake, or undue influence, when does the cause of action accrue?

Answer 17

1) For fraud, mistake, undue influence, the cause of action accrues when the plaintiff discovered the harm (or when a reasonable person would have discovered it)

Question 18

For malicious prosecution, when does the cause of action accrue?

Answer 18

2) For malicious prosecution, the cause of action accrues when the underlying case ends

Question 19

For contribution claims, when does the cause of action accrue?

Answer 19

3) For contribution claims, the cause of action accrues when one pays more than her fair share

Question 20

For medical malpractice, when does the cause of action accrue?

Answer 20

4) There is a special rule for malpractice through continuous treatment/service –> medical malpractice - cause of action accrues at the end of related treatment

Question 21

re: tolling of statute and filing - what is the “savings statute”?

Answer 21

if a Plaitnifff files suit against a Defendant before the statute of limitations runs - and also serves them with process - but then takes a nonsuit (dismisses action voluntarily) - the P has either:
a) 6months to refile suit OR
b) the time up until the SOL runs
WHICHEVER IS LONGER

Question 22

what happens if a doe defendant has actual knowledge of the case within the statute of limitations?

Answer 22

then an amendment to name him specifically AFTER the statute has run may be deemed timely

Question 23

when is filing a case timely within SOL?

Answer 23

Party must file suit no later than the close of business on the day when SOL runs.