West Virginia Statute of Limitations for Civil and Personal Injury Actions - An Overview
By Aaron Larson
Important Notice: The following overview of West Virginia's "statute of limitations" laws is presented on an as-is basis. This information is believed accurate as of the date of authorship, but is not intended to provide a complete analysis of statutory limitations on the right to sue and may not reflect subsequent changes in the law. For a full review of West Virginia's "statute of limitations" law, or for a determination of how the law applies to a specific incident or injury, please consult a qualified attorney licensed to practice in the state of West Virginia.
- What Is A "Statute of Limitations"
- Proliferation of Statutes
- Specific Civil Actions
- Statute of Limitations or Statute of Repose
- Accrual of Claims
- The Discovery Rule
- Tolling of the Statute of Limitations
- Contractual Limitations
A statute of limitations is a law which places a time limit on pursuing a legal remedy in relation to wrongful conduct. After the expiration of the statutory period, unless a legal exception applies, the injured person loses the right to file a lawsuit seeking money damages or other relief.
Although people often speak of "the statute of limitations", in fact there are many statutes which apply limitations periods to civil actions. Sometimes it can be difficult to keep track of the various statutes and their exceptions. Thus it is a very good idea for somebody who is concerned about losing their right to sue as a result of the expiration of the statutory limitations period to consult with a qualified lawyer, who can help determine which statute applies, and help preserve the right to recover damages.
The following periods represent a small sample of the statutory limitations periods in West Virginia. Please note that it may be possible to bring multiple causes of action from a single incident of wrongful conduct, and thus even if it appears that the relevant statute of limitations has run it may remain possible to bring a different claim. Also, there may be an exception to the standard limitations period that applies to any given situation. The following list is provided by way of example. If you wish to know how the statute of limitations applies to a specific situation, you should verify the statutory time period and its relevance to your situation with a qualified West Virginia lawyer.
Professional Malpractice: Professional negligence actions, including medical malpractice suits, must be filed within 2 years from the date the injury occurred, or within two years from the date the injury was or reasonably should have been detected.
Personal Injury: 2 years.
Libel / Slander / Defamation: 1 year.
Injury to Personal Property: 2 years.
Product Liability: 2 years from the date the injury occurred, or within two years from the date the injury was or reasonably should have been detected.
Contracts: Written, 10 years; Oral, 5 years.
A statute of repose is different from a statute of limitations, in that after the statutory period has expired it is not possible to file a lawsuit even if an injury occurs after that time. For example, if there is a twenty year statute of repose on the manufacture of aircraft, a claim cannot be filed against the manufacturer more than twenty years after the date of manufacture, even if a design or manufacturing defect is responsible for a later accident.
A statute of limitations is said to start running at the time a claim accrues. Ordinarily, that is the time at which an injury is suffered.
Sometimes it is not reasonably possible for a person to discover the cause of an injury, or even to know that an injury has occurred, until considerably after the act which causes the injury. For example, an error in the drafting of a will might not be noticed until the will is being executed, decades after it was drafted, or a financial planner's embezzlement might not be noticed for years due to the issuance of false statements of account.
When it applies, the "discovery rule" permits a suit to be filed within a certain period of time after the injury is discovered, or reasonably should have been discovered. The discovery rule does not apply to all civil injuries, and sometimes the period of time for bringing a claim post-discovery can be short, so it is important to seek legal assistance quickly in the event of the late discovery of an injury.
In addition to late discovery, it may be possible to avoid the harsh result of a statute of limitation by arguing that the statute has been "tolled". When it is said that a statute is "tolled", it means that something has stopped the statute from running for a period of time. Typical reasons for tolling a statute of limitations include minority (the victim of the injury was a minor at the time the injury occurred), mental incompetence (the victim of the injury was not mentally competent at the time the injury occurred), and the defendant's bankruptcy (the "automatic stay" in bankruptcy ordinarily tolls the statute of limitations until such time as the bankruptcy is resolved or the stay is lifted).
Under West Virginia law, except in cases of medical malpractice, the statute of limitations begins to run on a minor's eighteenth birthday. For cases of medical malpractice, minors may bring an action for malpractice within two years of the date of injury or until age twelve, whichever period is longer.
It is often possible to shorten a statutory limitations period by contract. For example, an employment contract might require that any claim relating to the employment relationship, including wrongful termination, be filed within one year of the claimed wrongful conduct. Courts often uphold these clauses, particularly in the context of business transactions, even though they provide for a shorter limitations period than the statute of limitations would otherwise apply.
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