50 States = 200 Ways to be Time Barred?
By Daniel Horner

It probably goes without saying among attorneys that an untimely claim is no claim at all. So, it’s no surprise that one of the first and most basic issues any attorney faces when taking on a new case is the statute of limitation, but knowing the statute of limitation is just the beginning. One must also be cognizant of when that period begins to run, when to file a wrongful death claim, and whether the claim was extinguished before it ever occurred. While this may seem easy to an attorney on his or her “home turf,” 50 states means more than just 50 statutes of limitation. Across this country, there may be well over 200 ways for a claim to be time barred.

In personal injury actions, statutes of limitation range from one year in states like Kentucky and Louisiana to six years in states like Maine and Minnesota. Even within a single state, an attorney may face a range of limitations depending on the theory of the case. For example, in Connecticut, while a plaintiff has only two years to file a claim for negligence, product liability claims can be commenced within three years. Complicating matters still more, some states have designated specific statutes of limitation for particular types of injury. In California, while the statute of limitation for personal injury is generally two years, actions for personal injury as the result of exposure to asbestos must be commenced within one year.

And while an attorney may be familiar with the so called “discovery rule,” that is, where the statute of limitation does not begin to run until the plaintiff discovers the injury, even the simple notion of when an injury is discovered varies from state to state. In some states, the statute of limitation begins to run not merely upon the discovery of a physical injury, but when the would-be plaintiff is chargeable with knowledge of all the material facts necessary to show the elements of the cause of action. Still, in others, it is the combination of discovery of the injury and its cause. While in others, the discovery of the injury alone triggers the limitation period.

And of course, these same variations apply when adding a cause of action for wrongful death; whether it is two years from the date that the claimant discovers the cause of the decedent’s death, as is the case in Delaware, or one year from the appointment of an estate representative, as in Kentucky. In Connecticut, the limitation period for wrongful death claims depends on the basis of the claim. Typically, the period runs for two years from date of death, but not more than five years from the act complained of, but in products liability cases, plaintiffs have three years from discovery of the injury.

To unsuspecting practitioners, most vexing of all are instances where a claim may be extinguished by a statute of repose before it even begins. Unlike statutes of limitation, statutes of repose begin to run, and often expire, before the plaintiff’s claim accrues. In products liability cases, many states limit the time a plaintiff may bring a cause of action to a period running from the time the product is initially sold. In Indiana, for example, there is a ten year repose period. Some states have variations on the repose period. In Kentucky, there is a rebuttable presumption that a product was not defective if an injury occurs more than eight years from the date of manufacture. In some instances, a case may be stymied by a seemingly unrelated repose period. In Wyoming, for example, a statute of repose for real estate will bar a products liability action if that product was used during construction, but not if it was used merely for repair.

While the rules of any single state may seem straightforward, taken as a whole, time limitations create an intricate and nuanced patchwork. And with 50 state legislatures at work, the rules are always subject to change. Keeping abreast of time limitations involves more than simply knowing the statute of limitations.

FOOTNOTES:
1 See K.R.S. § 413.140(1)(a), L.S.A.-C.C. Art. 3492, 14 M.R.S.A. § 752, M.S.A. § 541.05(1).

2 See C.G.S.A. § 52-584, C.G.S.A. § 52-577a.

3 See Cal.C.C.P. § 335.1, Cal.C.C.P. § 430.2(a).

4 See e.g. (Colorado) Miller v. Armstrong World Industries, 817 P.2d 111 (1991), (Alaska)

5 Sopko v Dowell Schlumberger, Inc., 21 P.3d 1265 (2001), (Florida) F.S.A. § 95.031(b).

6 See e.g. (Arkansas) Martin v. Arthur, 339 Ark 149 (1999), (Georgia) Welch v. Celotex Corp.,951 F.2d 1235 (1992).

7 See e.g. (Alabama) Ala. Code 1975 § 6-2-30(b), (Connecticut) C.G.S.A. § 52-577a and 52-584. See 10 Del. C. Ann. 8107, K.R.S. § 413.180 (as applied by Conner v. George W. Whitesides Co., 834 S.W.2d 652 (1992).

8 See C.G.S.A. § 52-555(a), C.G.S.A. § 52-572m, C.G.S.A. § 52-577a, Bauer v. Johns-Manville Corp., 599 F. Supp. 33 (D.C. Conn. 1984).

9  Some states, while having statutes of repose on the books, have had those statutes held unconstitutional by their highest courts. See e.g. (North Dakota) Dickie v. Farmers Union Oil Co of LaMourn, 611 N.W.2d 168 (2000), (Rhode Island) Kennedy v. Cumberland Engineering Co., Inc., 471 A.2d 195 (1984).

10 See I.C. § 34-20-3-1.

11 See K.R.S. § 411.310.

12 Covington v. W.R. Grace-Conn., Inc., 952 P.2d 1105 (1998).

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