• 22
  • February
    2012

When someone is injured or killed as a result of negligence or other wrongdoing, that person (or their estate representative) has a right to bring an action in court to recover damages for their loss. The damages can include lost wages/time missed from work, medical bills incurred, as well as physical pain, loss of mobility, loss of earning capacity or in the case of a death, funeral bills, grief of the survivors left behind and other harms that accompany wrongfully inflicted injuries and deaths.

West Virginia, like many other states, prescribes certain periods of time which such a claim must be filed. These times are typically called "statutes of limitations." Victims should be very wary of easy or fast answers to the question "What is the statute of limitations for my case?" The answer is not nearly as simple as one might expect. For example, while many negligence actions in West Virginia are governed by a two-year statute of limitations, an answer like that only begs the question, "Two years from what?" In other words, if you don't know when your time limits starts, you don't know when it ends, either.

The Supreme Court of West Virginia, in a case called Dunn v. Rockwell, 225 W.Va. 43, 689 S.E.2d 255 (2009), explained that:

Generally, the statute of limitations begins to run when a tort occurs; however, under the 'discovery rule,' the statute of limitations is tolled 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.'"

Factors influencing the application of the discovery rule include: 1) ascertainment, by a court or jury, of the point in time at which a plaintiff knew of the injury; 2) the identity of the entity who owed the plaintiff a duty to act with due care and who may have engaged in conduct that breached that duty; and 3) knowing that the conduct of that entity has a causal relation to the injury.

All of these factors need to be considered at any given case, and it would be unwise for any layperson to determine whether their case is within or outside the applicable statute of limitations without consulting an attorney. Despite the advantages the discovery rule seems to provide, filing any case sooner rather than later is preferable. No victim should ever count on being allowed to wait, without first getting advice from a licensed attorney.

Other cases in West Virginia don't get two years, instead they get only one. Furthermore, there are administrative filing deadlines, contractual provisions and a variety of other factors that can influence a court's final decision on whether a case is "timely filed." This makes competent legal advice all the more important.

One rule that is as true in law as it is in medicine is this: "Earlier is better." It stands to reason that the sooner one's case is filed the more likely that case will be considered to have been filed within the applicable statute of limitations, whatever that period of time may turn out to be. For this reason, Bordas & Bordas recommends that anyone who has been injured or who has a family member injured or killed who should consult an attorney as soon as possible.

A Bordas & Bordas attorney can look at all the facts in your case and any evidence that is likely to be available to help you understand how long you have to decide whether or not to pursue your claim and where it can be filed. Contact us by telephone at the numbers listed above to seek advice on your potential case. When the statute of limitations runs out, a case can be barred forever. Accordingly, consulting an attorney on what the statute of limitations is for your person injury or negligence case at the earliest possible time is a critical step that no one should skip.

--Bordas & Bordas