Reduced Statutes of Limitations and Notice Laws

Trying to decide an issue on which to write these blog posts can be difficult, not because we do not see enough interesting issues in the world of legal malpractice but because we see common issues where the subsequent claim from the error almost always results in payment and the reason for the error is an easy fix. This is how I landed on the topic for this blog post, reduced statutes of limitations and notice requirements with governmental tort claims. 

A common error we see which will usually result in a paid claim is the missed statute of limitations or notice requirements against a government entity. The error is usually caused by the reduction in time in which our insured must either send notice to or bring suit against a government entity. These claims normally result in payment because of the absence of any liability defense. Missing a statute of limitations or notice requirement is the legal equivalent of leaving a tool inside a patient after an operation. The error is clear, and the case becomes about how much damage the error caused. I will use the Wyoming statutes governing claims against governmental entities and normal personal injuries. In Wyoming, a plaintiff normally has four years from the date of injury to file a complaint against the tortfeasor. See WSA §1-3-105(a)(v), (B). However, if the tortfeasor is a governmental entity, the plaintiff must provide notice of the intent to sue within two years from the date of injury and then must file the complaint within one year of providing the notice. So not only does the statute of limitations governing claims against governmental entities reduce the time for filing by one year, it also adds the additional hurdle of filing the notice of the intent to sue within two years and ensuring you provide the notice to the correct governmental entity. These time limitations can be easily missed if one is not paying attention and can be significant challenges as the statute compacts the time a lawyer has to both research and prepare the case. Most states, if not all, have very similar statutes governing claims against governmental entities, and most only vary in the timeline allotted for notice and suit following notice. (See California’s six-month requirement on personal injury). Further, running afoul of one of these hurdles will also bar the claim forever, leaving the client without a viable claim and you with a malpractice claim.

The common reasons we hear for missing these statutes are:

1) ignorance of the reduced timeline on the statute of limitations; or

2) ignorance that the tortfeasor was a government entity. These reasons for failing to satisfy the statute will provide no relief from a malpractice claim and these errors are easily avoidable with two simple tips.

First, know the facts of your case. This does not mean just speaking to your client about what happened and then letting the file sit until you think it is time to file the complaint. This means doing the legwork immediately after you accept the case. When I say “legwork” I am referring to gathering all relevant information and documents relating to the underlying facts and potential tortfeasors when the case comes through the door. Do not wait 3 months to do a medical records request or obtain the police report. Waiting to gather this information may cause you to miss the notice deadline as these are usually even more of a compressed timeline than that for actually filing. See again California’s six-month notice and filing requirement or Utah’s one-year notice requirement.

Second, do not procrastinate. Several of the recent governmental tort claims were caused because our insured waited until the last minute to file the complaint and either failed to identify the defendant as a governmental entity and file the notice at all;  filed the notice with the wrong entity;  or missed the statute of limitations completely. Not procrastinating is especially important with governmental tort claims because of the added hurdle of providing notice to the correct entity before filing a complaint. There is no reason to wait until the last minute to either provide notice or file the complaint in these governmental tort cases. Doing so usually only hurts the client and creates an avoidable malpractice claim.

In closing, when there is any possible indication the tortfeasor in your case may be a governmental entity please be proactive and prompt in gathering information and correctly filing both the notice and complaint. Doing so will avoid heartbreak for your client and a malpractice claim for you.