Statutes of Limitations SUMMARY In all cases, an injured person has only a limited time in which to file legal action. Prior to tort “reforms” in Michigan, these rules were liberally construed and fairly reasonable. Recent decisions of the Supreme Court of Michigan have put teeth in these limitation provisions, however, and limitations as short as one year have been upheld as “reasonable”. The Court’s pro-insurance majority has also enforced “notice” provisions that may require action within months. Any seriously injured person must seek expert advice about the statutes of limitation from an experienced professional as soon as possible. Some of these statutory provisions are very complicated and not at all logical: no general or summary explanation should be accepted or relied upon. ________________________________ STATUTES OF LIMITATION Whenever the law grants a right to seek recovery for wrongdoing, it also places restrictions on how long the victim has in which to take legal action. If the victim delays too long in seeking compensation, he is said to have “slept on his rights” and his claim will not be heard. These limits are called “statutes of limitations” and they vary depending on the nature of the wrong that was committed. In many cases, there are other limitations on taking legal action, as well. Among the additional limitations are “notice” periods. In many circumstances, the injured victim is required to give notice of his injury within a time period that is even shorter than the statute of limitations. We cannot possibly identify all of the notice periods, but we can provide some of the more common examples: NO FAULT AUTO If you are injured in a car accident, you have the right to collect certain “PIP” benefits from your own insurer, normally. The insurer must receive written notice of the injury within one calendar year, even if no benefits are currently payable. No fault PIP benefits also have a unique limitation called the “one year back rule”. Under this rule, suit must be brought within one year of incurring any expense, even if the no fault carrier has been considering the expense and has not denied liability. No fault law in Michigan is also unique in that the tort “reform” majority of the Supreme Court recently held that the longstanding rules allowing infants and disabled people additional time in which to sue cannot be applied to no fault benefits. The right to make a claim against the person who caused auto-related injuries normally carries a three-year statute of limitations. This can create problems in several situations. First, the victim can only sue if his injury is “serious” and the tort-reform majority of Michigan’s Supreme Court has attempted to define “serious” as “life-altering”. If the injury is not life-altering within three years, but becomes life-altering after three years, the victim’s right to sue is not extended. Furthermore, many insurers sell Underinsured Motorist Coverage with a statute of limitations of only one years: under these policies, an injury victim who is not aware of the wrong-doer’s uninsured or underinsured status, or who cannot prove a life-altering injury within 12 months, may lose his right to recover under the policy he purchased. Many uninsured and underinsured motorist policies also require a special “notice” to the carrier of the wrongdoer’s insurance status and obligate the insured to obtain the written consent of the insurer prior to settling with, releasing, dismissing, or taking judgment against the wrongdoer. There is also a short, one-year, statute of limitations for taking action for damage to property resulting from a motor vehicle collision. GOVERNMENT IMMUNITY For several centuries under the common law of England, citizens could not sue the King in courts he established. Oddly, America continues that tradition and allows suit against the government only pursuant to limited statutory circumstances. Most of these statutes require that the government receive written “notice” of the injury and the surrounding circumstances within a period that may be as short as 60 days. Usually these very short notice periods are only operative if there is “prejudice” to the governmental entity resulting from the lack of notice, however, in the current political atmosphere, victims cannot assume the “prejudice” standard won’t be reversed. INSURANCE Many insurance policies have short time periods for notice or suit, and if the benefits are not mandated by the government, the tort “reform” majority of the Michigan Supreme Court recently held that an insurer is free to incorporate any time limitations that it desires. It is not uncommon for property damage provisions, fire insurance, and auto insurance policies to require a notice of loss that requires action while the victim is still reeling from the loss-causing incident. The Supreme Court majority also held that it would not consider whether such limitations are “reasonable,” which was a change from previous law and is contrary to the insurance law of most states. The Insurance Commissioner appointed by Governor Granholm took immediate steps to place at least some reasonable parameters on insurance policy limitations, however, rules imposed only administratively in this manner are highly susceptible to influence from the insurance industry. All consumers are held to have read and understood their insurance policies, despite the fact that most policies are incomprehensible even to jurists. Thus, any claim that is derived from an insurance policy must be examined immediately to assess how long the victim has in which to take action. MEDICAL MALPRACTICE Tort “reform” resulted in numerous changes in the rules governing procedure in claims alleging injury caused by a medical professional. Physicians and other medical professionals have always benefitted from a shorter (normally two-year) statute of limitations. When suit is brought, it also must be accompanied by an Affidavit of Merit signed by one or more specialists with highly- specific qualifications, which leaves even less time to investigate a potential claim. In addition, the Legislature created a mandatory notice-period in medical malpractice that prevents the filing of suit for 154 or 180 days, depending upon the wrong-doers response to the formal Notice of Intent to Sue. This statutory scheme was not fully integrated by the Legislature, which has resulted in the need for substantial interpretation by the Courts and some apparently contradictory or incomplete holdings. Thus, no lay person should try to calculate the statute of limitations or the notice period in malpractice without the input of an experienced professional. Because the mandatory Notice of Intent is strictly construed and may be given undue importance, both legal and medical expertise must be incorporated in to that document. In the case of medical malpractice injuries, there are exceptions to the statute of limitations where the injury was not “discovered” within the statutory period or where it was fraudulently concealed. The “discovery” provision allows only six months in which to take action, however, which means that a late-discovered claim must be explored by the victim immediately. There is also a Statute of Repose in medicine and in some other professional claims that places an outside limit within which any claim may be pursued. Finally, there is a special limitation for children in the medical malpractice reform statute. Whereas children injured in many other contexts have until one year after reaching the age of majority in which to take legal action, children injured as a result of malpractice must normally sue by age ten or within two years of the injury, whichever is later, even if they have not attained the age of majority when the statute of limitations expires. WRONGFUL DEATH The time limit for taking legal action in a case alleging wrongful death is also highly complicated. While every case should be carefully considered by an experienced professional, there are some broad guidelines that can be explained. In essence, the claim must be filed by the Personal Representative of the decedent’s estate, and that person must normally be appointed within two years of the death. After appointment, the Personal Representative normally has the applicable statute of limitations period in which to sue, however, in all cases the suit must be filed within five years of the date of death. These deadlines may vary depending upon various circumstances of the individual case and not all of these circumstances can be addressed in the abstract. PRODUCT LIABILITY CLAIMS If they allege a personal injury, these claims must normally be pursued within three years, and there is a three-year discovery period after any injury is identified, in which late-identified claims may be pursued. If a product claim relates to damaged property or other non-injury losses, it is probably covered by the Uniform Commercial Code and carries a short, one-year statute of limitations. STANDARD LIMITATIONS The basic Michigan statute of limitations for negligence is three years, however, there are so many exceptions that this limitation period cannot be taken for granted. Actions for slander, false imprisonment, dramshop liability, and many other wrongs must be undertaken within one or two years of the injury suffered. In essence, every injury should be analyzed carefully within a matter of months to determine the pertinent time for legal action. If action is delayed until the “eleventh hour”, a claim may be lost or the ability to negotiate a reasonable settlement without filing suit may be squandered. STATUTES OF REPOSE In some settings, such as medical malpractice and building construction or design defects, the Legislature has assigned an “outside date” after which no action will be allowed.. In the case of the building, this time runs from the date of occupancy. In the case of malpractice, it runs from the date of injury. LIMITATIONS IN BUSINESS / CONTRACT CLAIMS The basic Michigan statute of limitations for contract claims in generally six years. However, the Uniform Commercial Code shortens some of these action, especially those associated with banking claims to three years. To be certain that you do not lose your right to sue, you should contact a business litigation attorney promptly when you have a claim arising in a business situation. LIMITATIONS IN EMPLOYMENT CLAIMS The basic Michigan statute of limitations for claims arising out of an employment claim, whether a wrongful termination or a discrimination in employment claim is generally three years. However, as explained on our web page discussing employment claims, sometimes the time limits are extremely short and require the injured worker to take action within sixty days in order to preserve the worker's right to recovery. To be certain that you do not lose your right to sue, you should contact an attorney experienced in employment claims promptly. Free Initial Consultation Of course, we'll be happy to discuss your case at no charge. Telephone our office to make an appointment for a free consultation or to receive our brochure. 1-231-929-9700. Or email us at: email@example.com This web site is designed for general information only. The information presented at this site should not be construed to be formal legal advice nor the formation of a lawyer/client relationship.
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