State to state legal malpractice statute of limitations Zurich by jolinmilioncherie

VIEWS: 24 PAGES: 9

									JAMES J. BRUDNY, JR.
65 E. State Street
4th Floor
Columbus, OH 43215
Direct Dial: (614) 232-2415
Facsimile:   (614) 232-2410
E-mail:      jbrudny@reminger.com

               STATE-TO-STATE LEGAL MALPRACTICE
                    STATUTE OF LIMITATIONS
                       October 2009 Up-Date*
STATE              CITE                            STATUTORY LIMITATION
Alabama            AL ST § 6-5-574                 Within 2 years after the act of omission of
                                                   failure giving rise to the claim, or within 6
                                                   months of discovery, or of learning facts,
                                                   which would reasonably lead to discovery,
                                                   whichever is earlier. In no event may the
                                                   action be commenced after 4 years.
Alaska             AS § 09.10.070;AS § 09.10.053   In 2 years for tort actions after Plaintiff
                                                   discovers or reasonably should discover
                                                   elements of his/her cause of action
                                                   (pursuant to § 9.10.070); in 3 years for
                                                   contract actions (pursuant to § 9.10.053). In
                                                   6 years for property actions (pursuant to §
                                                   9.10.050)
Arizona            A.R.S. § 12-542                 Within 2 years after Plaintiff knows or
                                                   should know of attorney’s negligent
                                                   conduct and the damages are ascertainable,
                                                   not speculative or contingent. 6 month
                                                   Saving Statute, in court’s discretion
                                                   (pursuant to A.R.S. § 12-504).
Arkansas           A.C.A. § 16-56-105              Within 3 years after cause of action accrues
                                                   = cause of action begins to run, in the
                                                   absence of concealment of the wrong, when
                                                   the negligence occurs, not when it is
                                                   discovered by the client.
California         Ann. Cal. C.C.P. § 340.6 (a)    For an action other than actual fraud, 1
                                                   year after discovery or Plaintiff should have
                                                   reasonably discovered or 4 years from




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                                                     cause of action, whichever occurs first. The
                                                     4 years is tolled if attorney continued
                                                     representation on the matter. If Plaintiff is
                                                     required to establish factual innocence in
                                                     underlying criminal claim, 2 years after
                                                     post-conviction exoneration.
Colorado               C.R.S. § 13-80-102            Within 2 years after Plaintiff discovers or
                                                     should have discovered the attorney’s
                                                     negligent conduct.


Connecticut            C.G.S.A. § 52-577             Within 3 years for actions in tort. 1 year
                                                     Savings Statute under certain criteria
                                                     (pursuant to § 52-592).           Statute of
                                                     limitations is tolled under the continuous
                                                     representation rule, which states the
                                                     statute of limitations does not begin to run
                                                     until the attorney-client relationship
                                                     terminates as to the matter which gives rise
                                                     to the cause of action.
Delaware               10 Del. C. § 8106             3 years after Plaintiff discovered or should
                                                     have discovered the cause of action. 1 year
                                                     Savings Statute under certain criteria
                                                     (pursuant to 10 Del. C. § 8118).
District of Columbia   D.C. Code §12-301             3 years after actual injury has occurred, not
                                                     when the act causing the injury occurred.
Florida                F.S.A. § 95.11 (4)            Within 2 years from redressable harm of
                                                     injury has been established, and injured
                                                     party knows or should have known of the
                                                     injury or act; Claimant must be in privity
                                                     with professional, otherwise limitation is 4
                                                     years (see § 95.11(4)(a)).
Georgia                Ga. Code Ann. § 9-3-25; Ga.   Actions for legal malpractice are subject to
                       Code Ann. § 9-3-33            4 years, which commence from date of
                                                     attorney’s alleged wrongful act (pursuant
                                                     to § 9-3-25). Actions sounding in breach of
                                                     contract are subject to 4 years (pursuant to
                                                     § 9-3-25). Tort actions are subject to 2
                                                     years (pursuant to § 9-3-33).
Hawaii                 HRS § 657-1                   6 years after Plaintiff knew or should have
                                                     known of attorney’s negligence.
Idaho                  ID Code § 5-219               Within 2 years of the occurrence, act or
                                                     omission complained of unless the fact of
                                                     damage has been fraudulently and
                                                     knowingly concealed from the injured
                                                     parties to escape responsibility, in which
                                                     case cause of action shall accrue when the
                                                     injured party knows, or he should have




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                                            been put on reasonable inquiry regarding
                                            the matter complained of, and even if the
                                            damage has been fraudulently and
                                            knowingly concealed, the action must be
                                            brought within 1 year following the date of
                                            accrual or 2 years following the occurrence,
                                            whichever is later.



Illinois    735 ILCS § 5/13-214.3           Within 2 years after Plaintiff knew or
                                            reasonably should have known of the injury
                                            for which damages are sought. This period
                                            of time cannot exceed 6 years after the
                                            negligent act or omission.
Indiana     IN Code Ann § 34-11-2-4         Within 2 years after the act or the omission
                                            complained of.
Iowa        IA ST § 614.1(2), (4).          Within 2 years after the cause of action
                                            accrues if contract or tort based (pursuant
                                            to § 614.1(2)). Within 5 years unwritten
                                            contract, injury to property, and fraud
                                            (pursuant to § 614.1(4)).
Kansas      K.S.A. § 60-511; K.S.A. § 60-   Within 5 years for causes of action based
            512; K.S.A. § 60-513            upon written contract (pursuant to § 60-
                                            511); within 2 years for causes of action
                                            based upon tort (pursuant to § 60-513);
                                            within 3 years for any cause of action based
                                            upon expressed or implied contract not in
                                            writing (pursuant to § 60-512). Statute of
                                            limitations does not begin to toll until the
                                            underlying litigation is finally determined.
                                            Kansas       follows      the     continuous
                                            representation doctrine which tolls the
                                            statute of limitations until the attorney –
                                            client relationship ends with respect to the
                                            underlying matter.
Kentucky    KRS § 413.245                   Within 1 year from the date of occurrence
                                            or from the date when the cause of action
                                            was, or reasonably should have been,
                                            discovered by the party injured.
Louisiana   LSA–R.S. § 9:5605               Within 1 year from the date of the alleged
                                            act, omission, or neglect, or within 1 year
                                            from the date that the alleged act, omission,
                                            or neglect is discovered or should have
                                            been discovered whichever is later, but the
                                            action must be brought within 3 years of
                                            the alleged negligent act or omission.
Maine       14 M.R.S. § 752 and 753 B       Within 6 years from the time the negligent




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                                               act or omission occurred, but if a real estate
                                               action the cause of action accrues from
                                               when the act was discovered or should have
                                               been discovered.
Maryland        MD Code Ann. § 5-101           Within 3 years from the time the Plaintiff
                                               discovers or reasonably should have
                                               discovered the injury.
Massachusetts   A.L.M. GL Ch 260 § 4           Within 3 years after Plaintiff discovers or
                                               reasonably should have discovered he/she
                                               sustained appreciable harm as a result of
                                               the attorney’s conduct.
Michigan        M.C.L.S. 600.5805 (6)          Within 2 years of the date the attorney last
                                               provides a legal service related to the
                                               action initiated against him or within 6
                                               months after Plaintiff discovers or should
                                               have discovered the claim, whichever is
                                               later. But, cause of action does not accrue
                                               until the attorney-client relationship ceases
                                               with respect to the underlying matter.
                                               (M.C.L.A. 600.5838)
Minnesota       M.S.A. § 541.05                Within 6 years. A right of action accrues
                                               and the statue of limitations begins to run
                                               when damage occurs; ultimate damage need
                                               not be known or predictable, and Plaintiff
                                               need not have discovered that he/she has a
                                               cause of action.
Mississippi     Miss. Code Ann. § 15-1-29;     Within 3 years after cause accrues for
                Miss. Code Ann. § 15-1-49      actions based in tort (pursuant to § 15-1-
                                               49). 3 years for action based in contract
                                               (pursuant to § 15-1-29). Cause of action
                                               accrues from the date the client learns or
                                               should have discovered the negligence of
                                               his attorney.
Missouri        V.A.M.S. 516.100 and 516.120   Within 5 years once the effective damage is
                                               capable of ascertainment even though the
                                               amount of damage is not yet ascertainable.
Montana         MCA 27-2-206                   Within 3 years after Plaintiff discovers or
                                               through the use of reasonable diligence
                                               should have discovered the act, error, or
                                               omission, whichever occurs last. But in no
                                               case may the action be initiated more than
                                               ten years after the allegedly negligent act.
Nebraska        R.R.S. Neb. § 25-222           Within 2 years after the alleged act or
                                               omission unless the cause of action is not
                                               discovered and could not reasonably be
                                               discovered within such 2 year period, then
                                               the action may be commenced within 1 year
                                               of the date of discovery or from the




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                                                discovery of facts which would reasonably
                                                led to such discovery, whichever occurs
                                                earlier. The claim may not be initiated
                                                more than ten years after the alleged
                                                negligent act in any case.
Nevada           N.R.S. 11.207                  Within 4 years after the Plaintiff sustains
                                                damage or within 2 years after the Plaintiff
                                                discovers or through the use of reasonable
                                                diligence should have discovered the
                                                material facts, which constitute the cause of
                                                action, whichever occurs earlier.

New Hampshire    N.H. Rev. Stat. § 508:4        Within 3 years of the act or omission
                                                complained of, except that when the injury
                                                and its causal relationship to the act or
                                                omission were not discovered and could not
                                                reasonably have been discovered at the
                                                time of the act or omission, the action shall
                                                be commenced within 3 years of such
                                                discovery or at the time that it would have
                                                reasonably been discovered.
New Jersey       N.J.S.A. 2A:14-1               Within 6 years after the cause of any such
                                                action shall have accrued, which occurs
                                                when the client suffers actual damages and
                                                discovers, or through the use of reasonable
                                                diligence should have discovered facts
                                                essential to the malpractice claim.
New Mexico       NMSA § 37-1-4                  Within 4 years of the time when the harm
                                                or damage is ascertainable or discoverable
                                                by the injured party, and when actual loss
                                                of damage has occurred to the client.
New York         NY CPLR § 214(6)               Within 3 years regardless of whether the
                                                underlying claim is based in tort or
                                                contract. Such action accrues not when
                                                Plaintiff discovers the legal malpractice,
                                                but when the malpractice is committed. De
                                                Carlo v. Ratner (2002), 204 F.Supp.2d 630,
                                                affirmed 53 Fed.Appx. 161, 2002 WL
                                                31840789.
North Carolina   N.C.G.S.A. § 1-15 and § 1-52   Within 3 years. Cause of action for legal
                                                malpractice accrues at time of occurrence of
                                                last wrongful act of defendant.
North Dakota     N.D.C.C. 28-01-18(3)           Within 2 years. Cause of action accrues
                                                when the Plaintiff suffers actual damages
                                                and discovers or should have discovered
                                                the fact essential to the malpractice. North
                                                Dakota has adopted a "continuous
                                                representation rule" in legal malpractice




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                                             actions, which tolls the statute of
                                             limitations or defers accrual of the cause of
                                             action while the attorney continues to
                                             represent the client and the representation
                                             relates to the same transaction or subject
                                             matter as the allegedly negligent acts.
Ohio           O.R.C. § 2305.11              Within 1 year. Under Ohio law, legal
                                             malpractice claim "accrues," and statute of
                                             limitations begins to run, when there is
                                             cognizable event whereby the client
                                             discovers or should have discovered that
                                             his injury was related to his attorney's act
                                             or omission and client is put on notice of
                                             need to pursue his possible remedies
                                             against attorney, or when attorney-client
                                             relationship for that particular transaction
                                             or undertaking terminates, whichever is
                                             later; court must examine both dates, and
                                             later of the two will control when statute
                                             begins to run.
Oklahoma       12 Okl.St.Ann. § 95 (A) (3)   Action for legal malpractice is action in
                                             tort, and so is governed by 2-year statute of
                                             limitations for tort actions. The cause of
                                             action accrues when the Plaintiff could
                                             “first maintain an action to a successful
                                             conclusion.” Sherwood Forest No. 2 Corp., v.
                                             City of Norman, 632 P.2d 368, 370 (Okl.
                                             1980).
Oregon         O.R.S. § 12.110               Within 2 years. Cause of action accrues
                                             when Plaintiff knew or should have known
                                             of the facts necessary to establish a claim.
Pennsylvania   42 Pa.C.S.A. § 5524 (7); 42   Within 2 years for actions based in tort
               Pa.C.S.A. § 5527              (pursuant to § 5524). Within 6 years for
                                             actions based in contract (pursuant to §
                                             5527). Cause of action accrues when there
                                             is a breach of duty unless the injury could
                                             not have been discovered despite his due
                                             diligence, and then the claim is tolled until
                                             the Plaintiff discovered or should have
                                             discovered the breach of duty.
Rhode Island   RI ST § 9-1-14.3              Within 3 years of the occurrence of the
                                             incident which gave rise to the action. In
                                             respect to those injuries due to acts of legal
                                             malpractice which could not in the exercise
                                             of reasonable diligence be discoverable at
                                             the time of the occurrence of the incident
                                             which gave rise to the action, suit shall be
                                             commenced within 3 years of the time that




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                                                the act or acts of legal malpractice should,
                                                in the exercise of reasonable diligence, have
                                                been discovered.
South Carolina   SC ST § 15-3-530               Within 3 years. The cause of action accrues
                                                when the Plaintiff discovered, or in the
                                                exercise of due diligence should have
                                                discovered the resulting injury.
South Dakota     SDCL § 15-2-14.2               Within 3 years after the alleged
                                                malpractice, error, mistake or omission
                                                shall have occurred. This jurisdiction
                                                follows the continuous representation
                                                doctrine which tolls the statute of
                                                limitations while the attorney-client
                                                relationship still exists for the matter at
                                                issue.
Tennessee        T.C.A. § 28-3-104              Within 1 year, which starts to run when
                                                the client suffers a legally cognizable injury
                                                resulting from an attorney's negligence or
                                                other wrongdoing, and the client knows or
                                                should know the facts sufficient to give
                                                notice of that injury.
Texas            Tex Civ. Prac. & Rem. Code §   Within 2 years. The cause of action
                 16.003                         accrues when the Plaintiff discovers or
                                                should have discovered the risk of harm.
Utah             U.C.A. § 78B-2-307             Within 4 years of when the act complained
                                                of is discovered or, in the exercise of
                                                reasonable care, should have been
                                                discovered.
Vermont          12 V.S.A. § 511; 12 V.S.A. §   Within 6 years for injuries other than
                 512(4)                         personal injuries (pursuant to § 511).
                                                Within 3 years for injuries to person or
                                                property after discovery of the injury
                                                (pursuant to § 512(4)). Cause of action
                                                accrues when Plaintiff discovers or should
                                                have discovered both the injury and the
                                                cause.
Virginia         Va.Code Ann. § 8.01-246        Within 3 years for actions based upon oral
                                                contracts. Within 5 years for actions based
                                                upon written contracts. Cause of action
                                                accrues on the date of the breach of duty.
                                                Virginia tolls the statute of limitations if
                                                there is continuous representation.
Washington       A.R.C.W. § 4.16.080;           Within 6 years for actions based upon
                 A.R.C.W. § 4.16.040            written contract (pursuant to § 4.16.040).
                                                Within 3 years for actions based upon
                                                contract or liability, express or implied, not
                                                in writing (pursuant to § 4.16.080). Cause
                                                of action accrues when the Plaintiff




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                                                     discovered on in the exercise of due
                                                     diligence should have discovered the facts
                                                     which give rise to a cause of action.
                                                     Washington follows the continuous
                                                     representation doctrine.
West Virginia          W.Va. Code § 55-2-12; W.Va.   Within 5 years for actions based upon
                       Code § 55-2-6                 contract. Within 2 years for other personal
                                                     actions. West Virginia has adopted the
                                                     continuous representation doctrine.
Wisconsin              Wis. Stat. § 893.53           Within 6 years. Legal malpractice action is
                                                     governed by the six-year blanket limitation
                                                     on tort actions. Acharya v. Carroll (App.
                                                     1989) 448 N.W.2d 275, 152 Wis.2d 330,
                                                     review denied 451 N.W.2d 297. Cause of
                                                     action does not accrue until Plaintiff knows
                                                     or should have known of the facts giving
                                                     rise to his cause of action.
Wyoming                Wyo. Stat. § 1-3-107          Within 2 years of the alleged act, error, or
                                                     omission except if the injury or negligence
                                                     was not discoverable even in the exercise of
                                                     due diligence during that time period, then
                                                     2 years after the plaintiff discovered or
                                                     should have discovered the act or omission.


* This document is only a guide, and does not replace advice of legal counsel. Actual
limitation periods may vary due to specific fact patterns and/or situations. Refer to
most recent state statutes for more complete description, including, but not limited to,
tolling statutes.

Should you have any questions regarding professional liability claims of any kind in Ohio,
please feel free to contact any of our Professional Liability Practice Group members.


James J. Brudny, Jr.                            Facsimile: (216) 687-1841
Capitol Square                                  nsatullo@reminger.com
65 E. State Street
4th Floor                                       Donald L. Miller, II
Columbus, Ohio 43215                            One Riverfront Plaza
Direct Dial: (614) 232-2415                     401 W. Main Street
Facsimile: (614) 232-2410                       Suite 710
jbrudny@reminger.com                            Louisville, Kentucky 40202
                                                Direct Dial: 502-584-1310
Nicholas D. Satullo                             Facsimile: 502-589-5436
1400 Midland Building                           dmiller@reminger.com
101 Prospect Ave., West
Cleveland, Ohio 44115-1093
Direct Dial: (216) 430-2125




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Cheryl Atwell                  Laurie Avery
200 Courtyard Square           405 Madison Avenue, 23rd Fl
80 South Summit Street         Toledo, Ohio 43604
Akron, Ohio 44308              Direct Dial: (419) 243-4307
Direct Dial: (330) 434-6002    Facsimile: (419) 243-7830
Facsimile: (330) 375-9075      lavery@reminger.com
catwell@reminger.com
                               Jeanne Mullin
Shea W. Conley                 237 W. Washington Row
269 West Main Street,          Second Floor
Suite 700                      Sandusky, Ohio 44870
Lexington, Kentucky 40507      Direct Dial: (419) 609-4226
Direct Dial: 859-233-1311      Facsimile: (419) 626-4805
Facsimile: 859-233-1312        jmullin@reminger.com
sconley@reminger.com


John M. Dunn
250 Grandview Drive,
Suite 270
Ft. Mitchell, Kentucky 41017
Direct Dial: 859-643-1311
Facsimile: 859-283-6074
jdunn@reminger.com

Mario Ciano
1400 Midland Building
101 Prospect Avenue, W
Cleveland, Ohio 44115
Direct Dial: (216) 430-2109
Facsimile: (216) 687-1841
mciano@reminger.com

Brian Goldwasser
525 Vine Street, #1700
Cincinnati, Ohio 45202
Direct Dial: (513) 455-4005
Facsimile: (513) 721-2553
bgoldwasser@reminger.com

Robert Yallech
11 Federal Plaza, #300
Youngstown, Ohio 44503
Direct Dial: (419) 744-2003
Facsimile: (419) 744-7500
ryallech@reminger.com




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