If you snooze you lose. It is a harsh reality that people who are unaware of the time limits to file suit for a loss may lose all their rights to compensation forever.
Recently, I met with a highly intelligent, well-educated person who completely misunderstood the limitation period. This person thought that the two year statute of limitation for personal injury in Georgia referred only to submitting a claim to an insurance company rather than actually filing suit in court. Merely talking and negotiating with a claims adjuster does not stop the clock from running. The claims adjuster never would have informed the injured person that failure to file suit by the second anniversary of the injury would resulted in permanent loss of any right to recover damages.
Briefly summarized, here are the main time limits of which people should be aware regarding personal injury and wrongful death claims in Georgia.
Deadlines to file suit in court:
- Personal injury. Must be filed in court within two years from date of injury.
- Wrongful death. Must be filed in court within two years from date of death.
- Loss of marital consortium. Must file suit in court within four years.
- Property damage. Four years.
- Life Insurance Contracts. Although the Georgia statute of limitations for filing suit on written contracts generally is six years, it is very common for insurance policies include a contractual time limit to file suit of as little as one year. This is often trap for the unwary.
Deadlines to give pre-suit notice of claim.
Georgia law requires “ante litem” notice before suit for claims against state and local governments.
- Claims against state government. Within 12 months the claimant must present a pre-suit notice of claim in writing with specificity as to what happened and the amount claimed, to head of each state agency involved, and to Risk Management Division of Department of Administrative Services,. Suit must be filed within the applicable of limitations, but not less than 90 days after presentation of pre-suit notice of claim.
- Claims against county government. Must present claim in writing to county commission within 12 months, and prior to filing suit within statute of limitation.
- Claims against municipal government. Must present claim in writing within 6 months, then wait at least 30 days before filing suit.
When the clock stops running.
There are several Georgia rules that “toll” the limitation period and “ante litem” notice deadlines, essentially stopping the clock and extending the deadline for filing suit. Be extremely careful about relying upon any of these. Even if suit may be filed later, crucial evidence may be lost through delay.
- Minority. Under C.G.A § 9-3-90, when a child is injured, the clock does not start running until she becomes an adult on her 18th birthday, so the two years limitation period expires on her 20th birthday. Note this does not apply to medical malpractice claims, in which the limitation is tolled only until the 5th birthday and expires on the 7th birthday or two years from the injury, whichever comes last. However, the claim for a minor’s medical expense belongs to the parents and must be filed in court within two years after the injury. The differing time limits for claims arising from the same injury can be a trap for those unaware of the distinction.
- Mental incompetence. When a person is too mentally incompetent to manage his own affairs at all, the limitation clock stops running until the disability is removed or a guardian is appointed. Beware unless the person is so mentally addled as to be unable to write a personal check or call a lawyer on the phone, efforts to extend the time limit on this ground are unlikely to succeed. Being a little “off” is not enough.
- Pending criminal case against defendant. C.G.A § 9-3-99 provides: “The running of the period of limitations with respect to any cause of action in tort that may be brought by the victim of an alleged crime which arises out of the facts and circumstances relating to the commission of such alleged crime committed in this state shall be tolled from the date of the commission of the alleged crime or the act giving rise to such action in tort until the prosecution of such crime or act has become final or otherwise terminated, provided that such time does not exceed six years.” This has been applied to mean that when a related criminal case including a traffic citation remains pending against the person who caused an injury or death, the clock stops running. The time limit becomes two years from the date the criminal case is concluded. Beware that potential criminal charges are sometimes quietly dropped without any open action. It is often better to file suit and force the defendant to “take the fifth” in the civil case while the criminal case remains pending.
- O.C.G.A § 9-3-96 provides: “If the defendant or those under whom it claims are guilty of a fraud by which the plaintiff has been debarred or deterred from bringing an action, the period of limitation will run only from the time of the plaintiff’s discovery of the fraud. To toll the applicable limitations period, the fraud, in the absence of a confidential relationship, must be of a character which involves moral turpitude or actual fraud rather than constructive fraud.” This exception to the statute of limitation is strictly and narrowly construed. To toll a statute of limitation due to fraud, the following must be shown: (1) actual fraud involving moral turpitude on the part of the defendant, (2) the fraud must conceal the cause of action from the plaintiff, thereby debarring or deterring the knowing of the cause of action, and (3) the plaintiff must have exercised reasonable diligence to discover the cause of action, notwithstanding the failure to discover within the statute of limitation.
- Continuing tort. Georgia recognizes the theory of continuing tort, which applies where any negligent or tortious act is of a continuing nature and produces injury in varying degrees over a period of time. Under the theory of continuing tort, the statute of limitation does not begin to run until such time as the continued tortious act producing injury is eliminated. The continuing tort theory is limited to cases involving only personal injury, it is not applicable to claims for wrongful death or property damage.
- Unrepresented estate. Under C.G.A § 9-3-92, “The time between the death of a person and the commencement of representation upon his estate or between the termination of one administration and the commencement of another shall not be counted against his estate in calculating any limitation applicable to the bringing of an action, provided that such time shall not exceed five years. At the expiration of the five years the limitation shall commence, even if the cause of action accrued after the person’s death.” However, a temporary administrator is not considered a representative of the estate for purposes of tolling, even though a temporary administrator may prosecute a cause of action for the collection of debts owed to the decedent.
Ken Shigley, a former president of the State Bar of Georgia, is a board certified Civil Trial Advocate of the National Board of Trial Advocacy, lead author of Georgia Law of Torts: Trial Preparation and Practice, and chair-elect of the American Association for Justice Motor Vehicle Collision, Highway & Premises Liability Section.