"I only want to make an insurance claim, so do I need to follow these rules?"
Even if you just want to make an insurance claim, you still have to follow these rules. Specifically, you are required to file your case in court before it reaches the deadline. If you do not do so, the insurance company usually has the right to refuse to give you any money at all. This can be true even if you are in the process of talking to them about a settlement.
Some states have laws requiring insurance companies to notify you about the statute of limitations if you do not have an attorney. If you receive a notice of that kind, do not let the insurance company representative convince you that it does not mean what it says! You will be getting the notice for the plain and simple reason that the insurance company has every intention of using the statute of limitations as their legal ground to refuse to pay you anything.
"What can I do if I blew it?"
If a great deal of time has elapsed since an attack, the victim should not assume that the statute of limitations has expired. There are exceptions to the statute of limitations. They can be very technical, so it is of utmost importance to contact a lawyer immediately.
"Do I really need a lawyer to file a lawsuit?"
Except for the small claims courts, the laws of civil procedure are too complicated for a non-attorney to apply. Cases that cannot be handled in the small claims court therefore must be handled by a lawyer who is experienced in litigation matters. You are absolutely advised to retain an attorney to bring a case or defend against a case that is other than a small claims court matter.
If a dog bite does not draw blood, small claims court might be appropriate. Most jurisdictions have small claims procedures that make filing relatively easy. However, choosing small claims court means limiting the amount of damages that can be recovered. For example, in California the small claims courts can decide cases that have a dollar value of up to $7,500.00 per defendant.
Any dog attack that draws blood should be referred to an experienced attorney because there is a possibility of scars, and therefore a possibility that the legal damages might exceed what a small claims court is authorized to handle.
There is a tricky set of rules that covers claims against the government and its employees, and sometimes humane societies and SPCAs. Basically, before any court filings, a claim must be made in writing to the entity as follows:
- The claim must be made very soon after the attack. Do it within 60 days!
- The claim must be very specific in its presentation of the facts and injuries.
- The claim has to be handed to the correct person in the correct office.
A court case cannot be filed unless and until:
- The governmental claim is made, AND,
- The entity has either denied the claim, or has failed to deny it within a specific amount of time.
You may have heard that there are circumstances wherein the usual statute of limitations is "tolled" or "extended," such as when the victim is a child. Those rules do not necessarily apply to governmental claims!
Even if a governmental claim is for a small amount of money, and might be heard in the small claims court, the victim still has to comply with the governmental claim procedures.
Government offices readily hand out the claim forms. If any mistake is made on the form, however, the victim will lose all rights. The ease of getting these forms is in complete contrast to the technical knowledge required to fill them out.
Another trick is determining exactly who to give the filled-out form to. If it is sent to the wrong person or wrong office, the victim once again can lose all rights for that reason alone.
A humane society or SPCA can have governmental immunity in certain states. Therefore this type of defendant must be treated as if it actually were a governmental entity until an attorney determines otherwise.
Because of these complexities, victims are absolutely advised to consult with an attorney if there is reason to suspect that a defendant might be a governmental agency or employee. "Absolutely advised" means that there is no exception whatsoever to this advice.
With the exception of medical bills and other out of pocket costs and losses, and claims against governmental agencies, governmental employees and possibly some humane societies, all states allow some extra time for making a claim on behalf of a person who is under the age of 18. However, at the risk of repeating what was written above, the law in this area is very complicated, there are exceptions to the rules and exceptions to the exceptions, and by "make a claim" the law means settle a claim or file a lawsuit, not just make a report or make an insurance claim. (Obviously, a case can be settled without filing a lawsuit but the settlement must be finalized before the statute of limitations runs out.)
As will be seen, one must calculate the period of time in which the injured child must file his lawsuit or finalize his settlement, and also must determine (a) whether his parents have a shorter amount of time to make a claim for the child's treatment costs, (b) what that period of time is, if the parents indeed have a shorter period of time, and (c) whether, after minority ends, the child gets the full period set forth in the statute of limitations or a shorter period.
In most states, the statute of limitations "tolls" during minority, which means it does not begin running until the victim's 18th birthday -- in other words, the clock doesn't begin ticking until the child is 18 years old. For example, a California or Illinois victim who was injured at age three could wait until he turned 20, because the two-year statutory period in these states would not begin ticking until he turned 18. Georgia, Illinois, Ohio, Tennessee and a number of other states follow this rule.
(Watch out for states having different statutes of limitations depending on whether the defendant's liability is based on general negligence or a statute. For example, in Ohio a dog attack victim gets 6 years to bring a claim if and only if liability is based on the dog bite statute, but just 2 years if it is based on negligence or other causes of action. See Ohio Revised Codes sec. 2305.07 [6 years where dog bite liability is based on statute] and compare with ORC sec. 2305.16 [2 years where dog bite liability is based on causes of action other than a statute].)
In some states the statute tolls during minority but then the child gets less time than the normal statute of limitations. For example, in Iowa (Iowa C. 614.8) and South Carolina the statute tolls during minority but upon attaining legal age the minor has only one year to file suit. In Oregon, a minor's case tolls for up to 5 years but not past his or her 19th birthday (see ORS 12.160 subs. 2.)
In some states, parents and children have the same period of limitations when a minor is injured; examples include California, Oregon (ORS 12.160 subs. 5) and Ohio (Fehrenbach v. O’Malley, 113 Ohio St.3d 18 (OH, 2007).) But many states have different periods of limitations for the same incident. These include Maryland, Minnesota, Texas, Indiana and others.
Then there are the states that have unique rules.
- In Virginia, a minor can bring a case until the day he reaches the age of majority, but the parents have to bring their claim for medical expenses within 5 years of the date of the accident. See section 8.01-243 subd. (B) of the Virginia Code.
- In Maryland, a minor can wait until the day before he turns 21.
- In Kansas, a minor can bring an action until one year after he or she turns eighteen, but never more than eight years after the accident. (Kansas Statutes 60-515(a).) So a three-year-old would have to file suit by age 11 in Kansas.
- In Oregon, a
See generally L.S. Tellier, Annotation, What Items of Damages on Account of Personal Injury to Infant Belong to Him, and What to Parent, 32 A.L.R.2d 1060, §§ 13-14 (1953).
If you are not an attorney and your case has an issue pertaining to the statute of limitations, consult with a lawyer immediately because there are numerous exceptions to the rules, as well as exceptions to the exceptions. Do not give up because of something you read here or anywhere, including law books. This is a confusing area of law because courts actually do not like enforcing the statute of limitations and therefore have created many loopholes in it. And never use the statute of limitations as a guideline as to when to take action; always take action immediately by obtaining the advice of a lawyer. See the short video, Should I Start My Case Now or Wait Until Later?
Statutes of limitations are drastic laws because their purpose is to stop an injured person from obtaining a remedy if the person waits "too long." Because these laws are drastic, the courts and legislatures have created a number of exceptions to them. So the statute that you read isn't necessarily the law you get. That can be a good thing or a bad thing. Here are some examples of anomolies that could hurt you:
- In Oklahoma, there is a dog bite statute that creates strict liability for a first bite, and the statute of limitations for statutory liabilities is 3 years. However, the courts have held that a dog bite victim gets only two years to file suit because the general statute of limitations says two years.
- In Arizona, the general statute of limitations for personal injuries is two years, but only one year for dog bites based on the dog bite statute. The courts strictly enforce the one year limitation.
- In Ohio a dog attack victim gets 6 years to bring a claim if and only if liability is based on the dog bite statute, but just 2 years if it is based on negligence or other causes of action. See Ohio Revised Codes sec. 2305.07 [6 years where dog bite liability is based on statute] and compare with ORC sec. 2305.16 [2 years where dog bite liability is based on causes of action other than a statute].)
As you can see, the same principle leads to different conclusions in different states. For that reason, a lawyer must be consulted for the purpose of determining the correct period of limitations in any particular case. Don't give up hope if your own research indicates that you went beyond the time set forth in the statute.
- Alabama - Section 6-2-38
- Alaska - Sec. 9.10.070
- Arizona - Title 12, Article 3
- Arkansas - Sec. 16-56-105
- California - Sec. 335.1
- Colorado - Rev. Stat. Secs. 13-80-102
- Connecticut - Ch. 926 Sec. 52-584
- Delaware- Title 10, Ch. 81
- District of Columbia - Title 12, Ch. 3
- Georgia - Sec. 9-3-33
- Hawaii - Rev. Stat. Secs. 657-4
- Idaho- Title 5, Ch. 2, Sec. 5-219
- Illinois - 735 ILCS 5/13-201, 13-202, 13-212
- Indiana - Title 34, Art. 11, Ch. 2, Sec. 34-11-2-3, 34-11-2-4
- Iowa - Chapter 614, Section 614.1
- Kansas - Chapter 60, Art 5, Sec. 60-513
- Kentucky - Title 36, Chapter 413, Sec. 413.140
- Louisiana - Ci. Code. Art. 3492
- Maine - Title 14, Part 2, Ch. 205
- Maryland - Sec. 5-101
- Massachusetts - Title 5, Ch. 260, Secs. 2A and 4
- Michigan - Chapter 600, Act 236, Ch. 58
- Minnesota - Ch. 541, Sec 541.05, 541.07
- Mississippi - Title 15, Ch. 1, Secs. 15-1-36, 15-1-35, 15-1-49
- Missouri - Title 35, Ch. 516, Secs. 516.105, 516.120, 516.140
- Montana - Title 27, Ch. 2, 27-2-204 and 27-2-207
- Nebraska - Title 25, Section 207, 25-207
- Nevada - Chapter 11, Sec 11.190
- New Hampshire - Title LII, Chapter 508, Sec. 508.4
- New Jersey - Title 2A, Ch. 14, Sec. 2A:14-2, 14-3
- New Mexico - Ch. 37, Art. 1, Sec. 37-1-8
- New York - Art. 2, Secs. 214, 214.s, 215
- North Carolina - Title 1, Section 1-52, 1-54
- North Dakota - Title 28, Ch. 1, Secs. 28-01-16 and 28-01-18
- Ohio - Title 23, Ch. 5, Sec. 2305.07 (see Bora v. Kerchelich, 2 Ohio St. 3d 146 (1983)
- Oklahoma - section 12-95(A)(3) (The link will download Chapter 12, where you will find this code section.)
- Oregon - Ch. 12, Secs. 12.110, 12.115, 12.120
- Pennsylvania - 42 PA Con. Stat. Sections 5523, 5524
- Rhode Island - Title 9, Ch. 1, Sec. 9-1-14
- South Carolina - Title 15, Ch. 3, Secs. 15-3-530, 15-3-545, 15-3-550
- South Dakota - Title 15, Ch. 2, Secs. 15-2-14, 15-2-14.1, 15-2-15
- Tennessee - Title 28, Ch. 3, Secs. 28-3-103, 28-3-104
- Texas - Civ. Prac. & Rem Code, Title 2, Ch. 16, Secs. 16.002, 16.003
- Utah - Title 78B, Chapter 02
- Vermont - Title 12, Ch. 23, Secs. 512, 521
- Virginia - Title 8.01, Ch. 4, Sec. 8.01-243. For medical costs see Sec. 8.01-243 subd. (B).
- Washington - Title 4, Ch. 16, Secs. 4.16.080, 4.16.100
- West Virginia - Chapter 55, Sec. 55-2-12
- Wisconsin - Chapter 893, Secs. 893.54, 893.55, 893.57
- Wyoming - Title 1, Ch. 3, Sec. 1-3-105