Deadlines. They’re a fact of life. We face deadlines for filing income tax returns, college applications and much more.
Few deadlines are as important as those we encounter when we make a personal injury claim for damages against a negligent third party. Under Virginia law, if a plaintiff does not file their personal injury lawsuit and/or a required notice of claim before the statute of limitations time period runs out, their claim for monetary damages will be barred forever. Period. End of case.
Our values guide us
At Allen & Allen, we consider it a critical part of our responsibility to advise clients about the statute of limitations to ensure they preserve their right to justice. For over a century, we have embraced and upheld our duty to our clients, our team, and our community. Our foundation is built on the principles of integrity, respect, compassion, and trust—values that have been our cornerstone since 1910.
At Allen & Allen, our dedication extends beyond offering legal representation. We pledge to make your battle our own, to ensure that you receive fair treatment from insurance companies, and to seek justice on your behalf. This is the essence of what it means when we say, “I am an Allen.” Talk to an experienced personal injury attorney at Allen & Allen as soon as possible to protect your rights.
What is Virginia’s statute of limitations on personal injury claims?
Two years
In Virginia, when a competent adult 18 years of age or older is injured through the negligence of a third person, let’s say in a motor vehicle accident, he has two years from the date of injury to file his lawsuit in a court with jurisdiction to hear the case. In the law, this deadline is referred to as a statute of limitations. If the plaintiff files his lawsuit just one day late, his claim will be barred.
If the claimant names the wrong defendant in his lawsuit, the result will be the same. What do I mean? If the plaintiff believes the negligent driver of the car that struck him was James Smith and he sues James Smith, only to find out after the two year deadline has passed that the negligent driver was actually Fred Jones, it will be too late to sue Fred Jones.
There’s a lesson here. Never wait until the last minute to hire an attorney to file suit on your behalf in a personal injury case. It takes time to investigate and prepare a lawsuit to ensure that your case is filed on time, and filed against the correct defendant(s). Many attorneys will not take a case if they are first contacted close to the deadline.
Exceptions to Virginia’s statue of limitations: Minors and the disabled
There are narrow exceptions to the two-year Virginia personal injury statute, and they can be tricky. For example, if a personal injury claimant was a minor (under age 18) at the time he was injured, the statute of limitations may be tolled until he becomes 18 years of age. From the date of his 18th birthday, the claimant will have an additional two years within which to file his lawsuit. In effect, his 20th birthday becomes the deadline for filing his lawsuit.
If an adult personal injury claimant was under “a disability” at the time of his injury and has been declared incapacitated by an appropriate court, the statute of limitations may be extended in his case under certain circumstances. This rule most often applies to those who are intellectually disabled.
There are even exceptions to the exceptions in personal injury cases. In a medical malpractice case against a health care provider, a minor must file suit within two years of the date of the last act or omission, giving rise to his malpractice case unless the minor was less than eight years old when the malpractice occurred. In this situation, the minor will have until his 10th birthday to file suit.
Are these and other exceptions complicated? Yes they are, and there are additional exceptions as well. Don’t try to determine the limitations period on your own. This is where a personal injury lawyer is a valuable advocate.
Whenever you or a family member have been injured through the negligence of another, contact an attorney for advice regarding the particular statute of limitations applicable to your case. Do it promptly. Otherwise, you may miss a critical deadline for filing your lawsuit.
Written Notice of Claim must be filed in a personal injury case against a city, town, county, state, or U.S.
There are additional and mandatory deadlines to comply with for a personal injury lawsuit filed against a city, town, county, state, or the United States. And these deadlines differ according to the governmental entity involved.
When your personal injury claim is against a city, town or county in Virginia, you must file a written notice of claim within six months of the date you were injured. The law requires that the notice contain specific information relating to the nature of the claim, and that it be filed with one or more persons designated by law.
Statute of limitations for claims against Virginia
The same is true with personal injury lawsuits against the state of Virginia, except you have one year after injury to file your written notice of claim with the State Director of the Division of Risk Management or the Attorney General. In other words, where a governmental entity is concerned in a Virginia personal injury case you have to file both a Notice of Claim and a lawsuit, and the filing deadlines are not the same.
There’s a special trap here. Where claims against the state of Virginia are involved, you must file your lawsuit against the state within 18 months of filing your written notice of claim, but no later than two years after the date you were injured.
Statute of limitations for claims against the U.S.
Claims against the United States are another set of rules altogether. Within two years of the date of your injury, you must fully and correctly complete and file, with a designated federal official, a printed Claim Form provided by the federal government. The form is referred to as Form 95. Once you file Form 95, special rules and laws apply with respect to the date when you can or must file your lawsuit against the United States.
Tolls and government entities
Tolling provisions and exceptions may apply to some of the above claims against governmental entities, but not always. These laws change frequently. Sometimes you may not even be aware that your claim involves a government entity. The driver who runs into you may have been an employee of a government entity and in the scope of their employment when the accident occurred. Or the driver may have been on an errand for a government entity, so that the driver was an “agent” of the government entity when the accident occurred. In these circumstances, you would usually want to file suit against both the driver and the government entity. If there is some special notice requirement or other deadline, it may be too late to sue the government entity.
Wrongful death claims
In Virginia, the statute of limitations for filing a wrongful death claim is also generally two years. This means that a wrongful death lawsuit must be filed within two years from the date of the deceased person’s death. Failing to file within this time frame typically results in the case being barred and the right to seek compensation being lost.
There are exceptions, similar to the exceptions for personal injury cases.
- Minors: If the person entitled to bring a wrongful death claim is a minor, the statute of limitations may be tolled (paused) until the minor reaches the age of 18. However, it’s crucial to consult with an attorney as this can vary depending on the specifics of the case.
- Government Entities: When the wrongful death involves a government entity, special notice requirements and shorter time frames may apply. For example, claims against the Commonwealth of Virginia or its subdivisions may require filing a notice of claim within a certain period, usually within one year of the incident.
- Discovery Rule: Although not commonly applied to wrongful death claims in Virginia, there may be exceptional cases where the statute of limitations could be extended based on when the cause of death was discovered or reasonably should have been discovered. This is more typical in cases involving medical malpractice.
As with cases involving personal injuries, an experienced attorney can advise you on the applicable statute to ensure you can bring a legal claim before the time limit has expired.
Protect your legal rights. Contact an attorney right away.
Be smart. Talk to a lawyer to protect your right to recover compensation for your losses. The judicial system provides a level playing field for an injured person to pursue justice. Don’t wait too late to file a personal injury claim. If you believe you were negligently injured by the fault of another, call Allen & Allen today for a free consultation, at 866-288-1307.
