After experiencing an accident, you are likely consumed by the demands of medical care, physical recovery, and discussions with insurance adjusters. Although filing deadlines might not be your immediate concern, they hold significant weight regarding how and when you might seek a remedy. It is important to grasp that if the applicable period expires before you commence your lawsuit, the defendant might assert the statute of limitations as a defense and request that the court dismiss your case. Because Virginia law creates varied time restrictions based on the specifics of your situation, failing to identify the correct deadline can jeopardize your legal rights.
Steps to Manage Virginia Filing Deadlines
Following these steps can help you identify the timelines that apply to your situation and ensure you do not miss a critical date.
- Categorize the legal claim. Virginia law applies different time constraints based on the type of case involved. Generally, most personal injury lawsuits must be initiated within a two-year period following the date the cause of action accrues. Conversely, legal actions concerning injury to property, such as damage to your vehicle, typically carry a five-year filing window.
- Identify when the clock begins. For the majority of personal injury cases, the limitation period commences on the day the injury happens. In the context of motor vehicle crashes, the timer typically starts on the date of the collision, even if you are unaware of the full severity of your physical condition until a later date.
- Observe notice rules for government entities. If your claim involves the Commonwealth of Virginia or a transportation district, Virginia Code § 8.01-195.6 mandates that you provide written notice within one year after the claim accrues. Additionally, for negligence claims against a city, town, or county, Virginia Code § 15.2-209 requires written notice outlining the claim's nature and the time and place of the injury within six months after accrual.
- Consider medical malpractice extensions. While medical malpractice claims are generally confined to a two-year period, there are instances where Virginia law permits additional time. This may apply in situations involving the presence of a foreign object left in the body that lacks a diagnostic or therapeutic purpose, cases of fraud or concealment that hid the injury, or specific failures to diagnose tumors or cancer.
- Assess potential tolling circumstances. You should determine if your case qualifies for tolling, which functions to pause the statute of limitations. Factors such as infancy, incapacity, or specific obstructive conduct by a defendant can lead to a suspension of the clock. Once the period of suspension ends, the limitations period resumes with the same amount of time remaining as existed before the pause.
- Utilize discovery rules for specific actions. For legal actions grounded in mistake or fraud, the limitations period typically commences when the mistake or fraud is discovered, or when it reasonably should have been found through due diligence. Similar principles apply to asbestos-related injuries, where the clock generally begins when a physician delivers a diagnosis of an asbestos-related disease or injury.
- Calculate timing for wrongful death claims. In matters involving wrongful death, Virginia Code § 8.01-244(B) stipulates that the personal representative of the decedent must initiate the legal action within two years following the date of the decedent's death. This timeframe is dictated by the date of death, rather than the date of the injury that resulted in the death.
- Evaluate defendant obstruction. While a defendant leaving Virginia does not automatically halt the statute of limitations, you should investigate if they used direct or indirect means to obstruct the filing of your action. If such obstruction is present, the duration of that obstruction is generally excluded from the calculation of the limitations period.
For the full detail, including the exceptions, see the firm's guide to Statutes of Limitations in Virginia.
About the author
John P. Fishwick Jr. practices law in Roanoke, Virginia, where he founded Fishwick & Associates PLC. He is admitted before the Supreme Court of Virginia, the U.S. Court of Appeals for the Fourth Circuit, the U.S. District Court for the Western District of Virginia, the U.S. District Court for the Eastern District of Virginia, and the United States Supreme Court. He clerked for the Honorable James C. Turk of the U.S. District Court for the Western District of Virginia.
Where to find us
Fishwick & Associates PLC is at 30 Franklin Rd SW Ste 700, Roanoke, VA 24011, and the phone is (540) 345-5890. Consultations are free.
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The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for advice regarding your individual situation.
