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Statute of Limitations for Employment Claims

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									                              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.

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