The "statute of limitations" is one of Virginia's oldest, most familiar legal concepts. The doctrine, originating from the English common law, appeared as early as the Virginia Supreme Court case Waddy v. Sturman - a full four decades prior to the Declaration of Independence and the birth of our nation.
"Did you know that civil lawsuits are not the only claims that may involve the statute of limitations?
Even some criminal charges must be brought within a certain, defined time period or the Commonwealth loses the ability to prosecute.”
- Beau Correll, Esq.
Early on, English Courts (and Virginia Courts following the tradition) required that certain time periods for the resolution of legal matters be established due to two major considerations: witnesses move or their memories fade and evidence is destroyed or lost due to the passage of time. By establishing time limits in which legal controveries must commence, the concern over the destruction of evidence is somewhat ameleoriated. Virginia is not the only state with a limitations period - almost all states have some form of a limitations period to bring legal action. Interestingly, both Maine and North Dakota have a shocking six (6) year time limit for bringing personal injury claims - nearly four years longer than the majority of states such as Virginia.
Though Virginia's statute of limitations does a splendid job of encouraging the resolution of legal controversy, it can sometimes have both harsh and draconian effects to the unassuming litigant. Virginia courts consistently find that absent attenuating and exceedingly rare circumstances, commencing an action after the limitations period can act as a bar to legal action. What this means is that if a lawsuit (or certain claims) are not commenced within a specified time limit, the claims are dismissed. With all of this in mind, it's up to the other party, defending a claim, to identify any limitations issue and to raise it early in litigation. If the defendant does not raise the statute of limitations as a defense early enough, use as a defense may be waived.
EXAMPLES OF LIMITATIONS PERIODS IN VIRGINIA
Almost all areas of the law have a Virginia statute of limitations, including personal injury torts, professional malpractice, debt collection, and criminal matters. In addition to the applicability of the limitations period to multiple areas of law, there are many general rules and exceptions to exceptions. As this is a general discussion, you need to seek the advice of a personal injury lawyer if your particular matter involves the wrongdoing of another party.
With regard to civil matters, Virginia Code § 8.01-243 controls many of the situations in when the statute of limitations may apply. If the claim involves the Commonwealth of Virginia itself or municipal corporations (like cities or towns), there are other limitations periods that arise just months after the date of the negligent conduct. In essence, it's possible to comply with the two (2) year limitation period, but if you fail the others, you can have a claim dismissed.
Generally, an action must commence within two (2) years for cases involving:
- Injury to another person;
- Examples: vehicle accident, civil assault and battery, slip and fall
- Wrongful death;
- There are several situations governed by Va. Code § 8.01-244.
- Fraud; and
- Medical and professional malpractice.
- There are numerous exceptions to the medical malpractice statute of limitations, such as if the malpractice includes a foreign object.
Other areas of law have their own limitation periods:
- Defamation (including libel or slander) (1 Year);
- Damage to Personal Property (5 Years);
- Trespass (5 Years); and
- Oral contracts (3 Years) and written contracts (5 years).
As a general rule of thumb, if a state law claim does not involve the government as a defendant, it's generally safer to err on the side of caution and act as if there is a one (1) year statute of limitations period. As a practical matter, not many attorneys will take a case with only a few weeks to file a lawsuit before the deadline and if you assume the statute is one year - and you're wrong - then what did you lose?
"Limitation periods can mean either the life or death of a viable claim. If you are in any doubt, you need to seasonably pursue a viable claim or it will be lost forever.”
- Beau Correll, Esq.
CRIMINAL STATUTE OF LIMITATIONS
Many are surprised to learn that there is a Virginia criminal statute of limitations period. As a general rule, all misdemeanor criminal charges must be brought within one (1) year from the date of the offense. There are many exceptions to this rule. For example, the Commonwealth has up to five (5) years to criminally charge a defendant for a petit larceny (for an amount less than $200).
One critically important bit of information is that there is generally no felony statute of limitations period. For example, a felony embezzlement may be brought years after the date of the alleged offense. It's important to distinguish whether a charge can be brought versus whether it will likely be brought. For that, you need to consult with a Virginia criminal defense lawyer.
There is a critical caveat here: just because a person hasn't been arrested or served with the criminal charge within the Virginia criminal statute of limitations doesn't mean that the government cannot bring the charge. The Commonwealth just has to have the grand jury or magistrate issue the charge within a certain time period following the alleged offense date.
For a more expansive list of criminal statute of limitations in Virginia, you can review Va. Code § 19.2-8.
Correll Law Firm, PLC, serving Northern Virginia and Winchester, Virginia, has a solid familiarity of personal injury and auto injury claims, the factors to maximize success, and the law related to personal injury claims. The firm also has an emphasis on defending criminal law cases including felonies, such as white collar crime, and misdemeanors. We are pleased to advocate and fight for our clients in the legal system. Whether you have documentation when you come to see us or not, we are ready to make your consultation and representation the best it can be. To have us contact you, you can fill out one of these brief forms (Personal Injury or Criminal Defense) or call us at (540) 535-2005.
Think You Have A Case?
Receive a case evaluation by giving us a call.