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Statute Of Limitations Issues In West Virginia

On Behalf of | May 5, 2016 | Personal Injury

“Statutes of limitations” define the time limits for parties filing civil lawsuits and the state prosecuting the commission of crimes. They are often determined by the type of cause of action or crime in a particular matter. Each state, including West Virginia, has their own set of statutes of limitations.

Once the statute begins to run, a civil lawsuit or criminal charges must be brought against a party within the time prescribed by the applicable statute of limitations. Time periods are almost always for some term of years. Once a civil statute of limitations expires or runs, a lawsuit may no longer be filed by a plaintiff; once a criminal statute of limitations expires, criminal charges may no longer be brought by the state.

Issue: Determining the Applicable Limitation Period
Injured parties must determine and know the nature of their particular cause of action to find the applicable statute of limitations. A prerequisite of this knowledge is ascertaining the elements of each potential cause of action, which necessitates the assistance of an experienced personal injury attorney. The following are various West Virginia Statutes of Limitations for civil tort causes of action:

Assault and Battery, 2 years W. Va. Code § 55-2-12(b)
Defamation (Libel, Slander) 1 year W. Va. Code § 55-2-12(c)
False Imprisonment, 1 year W. Va. Code § 55-2-12(c)
Fraud, 2 years W. Va. Code § 55-2-12(a) or (b)
Legal Malpractice, 2 years W. Va. Code § 55-2-12(a) or (b)
Medical Malpractice, 2 years W. Va. Code § 55-2-12(b)
Personal Injury, 2 years W. Va. Code § 55-2-12(b)
Product Liability, 2 years W. Va. Code § 55-2-12(a) or (b)
Property Damage, 2 years W. Va. Code § 55-2-12(a)
Trespass, 2 years W. Va. Code § 55-2-12(b)
Wrongful Death, 2 years W. Va. Code § 55-2-12(b)

Issue: When Does the Statute Start to Run?
Generally, the time period begins on the date a claim arises or accrues. For a car accident it would be the day of the event. For a crime, the date of commission. Most states, including West Virginia follow the “discovery rule” under which the statute of limitations is tolled, i.e., suspended, until a claimant knows, or by reasonable diligence should know of his claim. ” The discovery rule recognizes ‘the inherent unfairness of barring a claim when a party’s cause of action could not have been recognized until after the ordinarily applicable period of limitation.’ Dunn v. Rockwell, 225 W.Va. 43, 689 S.E.2d 255 (2009),

Dunn set forth a five-factor analysis to be utilized when a defendant asserts a statute of limitations defense. First, the applicable statute of limitation for each cause of action brought by the plaintiff must be identified by the trial court. Then, the fact finder must identify when the required elements of each cause of action occurred and “when the plaintiff knew, or by the exercise of reasonable diligence should have known, of the elements of a possible cause of action.” Then, the judge or jury must “determine whether the defendant fraudulently concealed facts that prevented the plaintiff from discovering or pursuing the cause of action” and whether “the statute of limitation period was arrested by some other tolling doctrine.” The court noted that “[o]nly the first step is purely a question of law; the resolution of steps two through five will generally involve questions of material fact that will need to be resolved by the trier of fact.”

Issue: Suing the Government
Unlike some states that have special rules that apply to government claims, West Virginia basically has none for suing government entities. The same statutes of limitations that apply to suing private persons and entities apply to suing the State of West Virginia, any of its counties, cities, towns or municipalities. However, some entities, like municipalities, may have special rules and procedures for filing claims and receiving compensation.

If you have a personal injury claim that you believe may be subject to expiring under the statute of limitations, please call Amy Crossan, an expert in personal injury law, for a consultation at 304-523-8451.