The day that you are hurt, the clock starts ticking. The law provides that every claim must be filed in court within a specified time or the claim is forever lost. Countless injured individuals have never been compensated for serious injuries caused by gross negligence because they waited too long - they let the clock run out.
The length of time the law provides between the date of injury and the date a lawsuit must be filed is generally contained in the Statute of Limitations. Interpreting the Statute of Limitations is one of the most complex analyses in law.
WHEN DOES THE STATUTE OF LIMITATIONS START TO RUN
Sometimes the hardest analysis is one that would seem the easiest - what is the date of the injury? In those cases where there is a sudden traumatic injury, it generally is not a problem. However, there are often cases where the date is not recorded or not recorded correctly. For instance, a fellow twists his back on a bad handbrake and walks it off. As the days, weeks and months go by, the nagging ache turns into a debilitating injury. The date of injury must be identified. Sometimes it can be quite difficult to go back and ascertain the correct date. An even harder case to identify the date of injury is the occupational injury case. A worker breathes in asbestos fibers working in the diesel house over his 30-year career. Asbestos disease can take up to 20 years to manifest itself. What is the date injury? Typically, an occupational injury is said to have occurred for limitation purposes on that day when the injured worker knew or should have known of the injury and the cause.
The next inquiry is to attempt to verify the correct time period in which suit must be filed. Some, but not all, units of local government require claims to be filed within 6 months of the date of injury. Many state Statute of Limitations require wrongful death claims to be brought within one year. Most state personal injury cases must be filed within 2 years of the injury date. FELA cases are not subject to the state Statute of Limitations. The FELA itself contains as a condition precedent to recovery, filing within 3 years of the injury. Some states have Statute of Limitations of 4 years for injuries arising from certain types of construction activities.
Some states have special provisions for children, incompetents or others under a legal disability. Generally the limitations will not begin to run until the disabled person is legally competent. These are important provisions because claims otherwise expired on their face may still be actionable.
In some cases state tolling provisions of the Statute of Limitations comes into play. When a claim is filed and dismissed, reversed on appeal or under some other circumstances, state law provides time, usually one year to re-file a lawsuit regardless of how long it is after the date of injury. The analysis becomes more complex when one attempts to use a state savings statute to extend the limitations for a federal cause of action, like the FELA - Federal Employers' Liability Act. Special complex rules apply to determine how much of the federal limitations period remains which may be longer or shorter than the state savings statute permits.
An ancillary source of limitations can be found in insurance policies. Many such "contracts" contain special limitation periods different than the state statute, or based on a statute from another state.
TIME TO INVESTIGATE ACCIDENT
Once the applicable limitations period is ascertained, enough time must be allocated prior to the expiration of the limitations period to fully investigate the identity of all defendants and to have a firm grasp of the operative facts. All defendants and all theories of liability must be included in the original lawsuit filing. Often culpable defendants are not identified until after a lawsuit is filed and discovery is conducted. Consider the problem of identifying the correct railroad defendant with the merger mania of the last few years.
Some cases have multiple limitation periods for the same claim. Often a railway worker is injured while on industry property. Different limitation periods may apply to the railroad versus the industry. If injured on government owned property, another limitation may control. Many railroaders have lost valuable claims against an industry because of a misunderstanding of the correct limitations period.
The Statute of Limitations was enacted to protect defendants from being sued on stale claims. It is thought to be unfair to force a defendant to defend a claim many years after an injury. However, savvy defendants work the Statute and use it as a sword instead of a shield as intended. Claim agents will lull an injured worker into a false sense of security with fanciful promises until after the limitation has expired. Then the claim agent drops the victim like a hot potato. Beware of the claim agent who says "don't worry about consulting a lawyer, you have plenty of time to file."
In conclusion, the decision when to consult a lawyer after an injury can be crucial. If you rely on the claim agent or even your own research, you may sacrifice the only recoverable claim you have. Keep the clock from running out on your claim by contacting Hoey & Farina immediately after any work incident that could result in personal injury litigation.